Exhibit A — Marshall v. Prestamos CDFI, LLC (Dkt. 32-2, E.D. Pa. No. 5:21-cv-04337)

Record facts

U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 32-2 · 2022-03-17 · Docket on CourtListener

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EXHIBIT A 
Case 5:21-cv-04337-JMG     Document 32-2     Filed 03/17/22     Page 1 of 12

 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
 
 
ALICIA MARSHALL, DANIEL 
PRONSKY, PARIS TOWNSEND, 
NANCILEE HOLLAND, LEONA 
OWSLEY, KOLAWOLE AHMADOU, 
KIANA DERVIN, KRISTINA 
HENDERSON, DUSTIN INNIS, KELLY 
STALNAKER and JAMIE JONES, 
individually and on behalf of all others 
similarly situated, 
 
 
 
Plaintiffs, 
 
 
 
v. 
 
PRESTAMOS CDFI, LLC, 
 
 
 
 
Defendant. 
 
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Case No. 5:21-cv-04337-JMG 
 
 
 
 
 
 
 
 
REPLY IN SUPPORT OF PRESTAMOS CDFI, LLC’S 
MOTION TO DISMISS PLAINTIFFS’ AMENDED COMPLAINT 
 
 
 
 
BALLARD SPAHR LLP 
HERRERA ARELLANO LLP 
 
Marcel S. Pratt (Pa. ID 307483) 
Roy Herrera* 
Michael R. McDonald (Pa. ID 326873) 
Daniel A. Arellano* 
Alexa L. Levy (Pa. ID 327973) 
Jillian Andrews* 
1735 Market Street, 51st Floor 
530 East McDowell Road, Suite 107-150 
Philadelphia, PA 19103 
Phoenix, AZ 85004 
T: 215-665-8500 
T: 602-567-4820 
F: 215-864-8999 
Roy@ha-firm.com 
PrattM@ballardspahr.com 
Daniel@ha-firm.com 
McDonaldM@ballardspahr.com 
Jillian@ha-firm.com 
LevyA@ballardspahr.com 
 
 
*pro hac vice admission to be sought 
 
Attorneys for Defendant 
 
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The first lines of Plaintiffs’ Opposition Brief reveal the nature of this action: Plaintiffs 
purport to be waging “a vitally important public law enforcement proceeding.” But Congress was 
clear that a lender’s compliance with the PPP is for the SBA to police, not for private borrowers; 
courts nationwide have recognized that the PPP does not entitle borrowers to a private cause of 
action. Permitting this case to proceed against Prestamos—a mission-driven community 
development financial institution—is not what Congress intended. 
Plaintiffs’ claims are meritless, in any event, and Plaintiffs’ opposition repeatedly dodges 
key precedent or misdirects on the issues. For the reasons set forth in Prestamos’s Opening Brief 
and below, the Court should dismiss the Amended Complaint with prejudice. 
ARGUMENT 
I. 
Plaintiffs do not have standing to bring their claims. 
Plaintiffs’ survey of the boilerplate standards governing jurisdictional challenges does not 
meaningfully confront the reality that courts repeatedly have dismissed claims just like Plaintiffs’ 
for lack of Article III standing. See Def. Br. at 12–14. Their only counterargument is that their loan 
applications, unlike other PPP plaintiffs, had made it to approval. See Opp. Br. at 10. But Plaintiffs 
were not any more “entitled” to a PPP loan from Prestamos than any other applicant. Indeed, SBA 
regulations state several times that an individual does not have a right to a loan. See, e.g., 86 Fed. 
Reg. 8283, 8285 (Feb. 5, 2021) (authorizing SBA at any time to investigate a recipient’s eligibility 
for a loan (citing 15 U.S.C. § 634(b)(11)); id. at 8288 (explaining that SBA and lender may 
determine even a disbursed loan is not eligible for forgiveness). 
This, too, demonstrates why any harm Plaintiffs suffered is not traceable to Prestamos. In 
light of the myriad explanations for why an “approved” borrower may be denied a loan, Plaintiffs’ 
allegations do not plausibly demonstrate that their non-receipt of a PPP loan was “because of 
[Prestamos’s] inaction.” Ironworks Dev. Llc v. Truist Bank, No. 21-32, 2021 U.S. Dist. LEXIS 
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238037, at *7–8 (W.D. Va. Dec. 7, 2021) (“[T]he Complaint does not foreclose the possibility that 
[plaintiff’s] loan was rejected because of the conduct of the SBA, or [plaintiff] itself; or simply 
because funds were more limited than applicants.”). And while Prestamos’s motion underscores it 
multiple times, Plaintiffs’ opposition fails to dispute that the Amended Complaint offers other 
reasons why borrowers did not receive their loans, including that some borrowers’ banks rejected 
attempts by Prestamos to fund a PPP loan. See Def. Br. at 4, 9, 15, 20, 29. 
Plaintiffs’ other arguments fail. Their contention that they suffered a concrete harm because 
they might be “obligated to repay,” and “precluded [from] applying for forgiveness” of, loans that 
they allegedly did not receive is illogical—none of them were responsible for repaying the loan. 
Opp. Br. at 2, 7, 11. Nothing in the law foreclosed Plaintiffs from withdrawing their applications 
from Prestamos if dissatisfied. Finally, although a plaintiff’s well-pleaded claims about losing 
money to which they are entitled (and Plaintiffs were not entitled to any money here) may present 
a cognizable injury-in-fact, Plaintiffs’ allegations are “conclusory assertion[s] of money lost 
[paired] with a request that a defendant pay up,” which are legally insufficient. See Def. Br. at 14 
(citations omitted).  
At the very least, the Court should dismiss Plaintiffs’ claims insofar as they are brought 
under the laws of states in which the named Plaintiffs were not injured. The cases Plaintiffs cite, 
Opp. Br. at 11–12, do not address this issue. Neale v. Volvo Cars of N. Am., LLC, 794 F.3d 353 (3d 
Cir. 2015) (district court’s dismissal of nationwide class was not subject of appeal); In re Horizon 
Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625 (3d Cir. 2017) (involving claim under 
federal law); Bombin v. Sw. Airlines Co., 529 F. Supp. 3d 411 (E.D. Pa. 2021) (Gallagher, J.) 
(addressing class-action waiver); Bodor v. Maximus Fed. Servs., Inc., No. 19-cv-5787, 2021 U.S. 
Dist. LEXIS 203823 (E.D. Pa. Oct. 22, 2021) (Gallagher, J.) (federal-law claim). 
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Plaintiffs are exactly right, though, that at this stage, the “standing inquiry focuses solely 
on the class representatives.” Opp. Br. at 11 (quotation omitted). And that inquiry involves whether 
a named plaintiff can “demonstrate standing for each claim he seeks to press.” Neale, 794 F.3d at 
359 (3d Cir. 2015) (quotation omitted) (emphasis added). As this Court and others in the Circuit 
have recently held, this means that plaintiffs cannot bring claims based on state laws under which 
they themselves were not injured. Def. Br. at 16; see also, e.g., In re Sensipar Antitrust Litig., MDL 
No. 2895, 2022 U.S. Dist. LEXIS 43561, at *46–48 (D. Del. Mar. 11, 2022); Cohen v. Subaru of 
Am., Inc., No. 20-8442, 2022 U.S. Dist. LEXIS 42511, at *17–18 (D.N.J. Mar. 10, 2022); In re 
Niaspan Antitrust Litig., 42 F. Supp. 3d 735, 758 (E.D. Pa. 2014). 
II. 
Plaintiffs cannot use state law to enforce Prestamos’s obligations under the PPP. 
Plaintiffs’ claims are not viable because they seek to enforce Prestamos’s compliance with 
a federal statute that does not give them the right to do so. “The federal judiciary will not engraft 
a remedy on a statute, no matter how salutary, that Congress did not intend to provide.” Mass. Mut. 
Life Ins. Co. v. Russell, 473 U.S. 134, 145 (1985) (quotation omitted). Honoring this fundamental 
precept, courts nationwide routinely dismiss state-law claims predicated on alleged violations of 
federal laws Congress did not permit private plaintiffs to enforce—including the PPP. See Def. Br. 
at 17–18.1 Plaintiffs contend their claims are different because they are more direct. Opp. Br. at 
17–18. But it is unclear why that means Plaintiffs’ independent state-law claims should be treated 
any differently than those asserted, and rejected, in the cases Prestamos cites. Cf. Opp. Br. at 17.  
Plaintiffs also fault Prestamos for “fail[ing] to address” preemption doctrine. Opp. Br. at 
13. But preemption is not a basis for Prestamos’s Motion. Whether federal law preempts state law 
                                                 
1 See also, e.g., Shehan v. United States DOJ, No. 20-cv-500, 2020 U.S. Dist. LEXIS 244022, at 
at *30–32 (S.D. Ohio Dec. 29, 2020) (rejecting fraud-related state-law claims against PPP lender 
in part because of the CARES Act’s lack of a private right of action). 
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is a distinct question from whether a private party can sue to enforce that federal law. See, e.g., 
Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004); W. Air Lines, Inc. v. Port 
Auth. of N.Y. & N.J., 817 F.2d 222, 225 (2d Cir. 1987).  
Consistent with this position, Prestamos does not contend that the CARES Act’s lack of a 
private right of action will “preclude” any and all state claims that may “refer to or incorporate 
some element” of the law. Bukowski v. Wells Fargo Bank, N.A., 757 F. App’x 124, 128–29 (3d Cir. 
2018) (citation omitted) (cleaned up). This is the reasonable holding of courts addressing violations 
of independent substantive obligations that touch on—but do not entirely overlap with—federal 
law or regulation. See id. at 129 (upholding claim that lender deceived the borrowers about their 
satisfaction of certain federal program guidelines, similar to Wigod v. Wells Fargo Bank, N.A., 673 
F.3d 547 (7th Cir. 2012)); Scott v. Gate Gourmet, Inc., No. 20-11033, 2021 U.S. Dist. LEXIS 33020 
(C.D. Cal. Feb. 22, 2021) (employer committed wrongful termination and other breaches when 
firing employees in advance of receiving CARES Act funds); Cave v. Saxon Mortg. Servs., Inc., 
No. 11-cv-4586, 2012 U.S. Dist. LEXIS 75276 (E.D. Pa. May 30, 2012) (lender breached express 
contract terms promising to consider the borrower’s eligibility for a loan modification).2  
Contrast those cases with the circumstances here, where Plaintiffs admit that they seek to 
enforce Prestamos’s obligations under the PPP, and not just bring a claim that merely relates or 
refers to the PPP. Opp. Br. At 19 (contract’s “central purpose” is to “fund Plaintiffs’ loans”); 20 
(“PPP loan funding” is “mandatory” under federal regulations); 22 (alleged “failure to fund . . . 
implicates very serious SBA rule violations”). Congress could not have intended to bar private 
                                                 
2 The court’s decision in Steven L. Steward & Assocs., P.A. v. Truist Bank & Truist Fin. Corp., 
2020 U.S. Dist. LEXIS 187084 (M.D. Fla. Oct. 6, 2020), gives the briefest treatment to the right-
of-action issue before summarily disposing of the plaintiff’s common law claims as inadequately 
pled. Cf. Opp. Br. at 16–17. It is neither mandatory nor persuasive authority. 
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enforcement of the PPP while at the same time intending to “incorporate[e] the PPP statutory 
scheme into [a] contract” that can be enforced under state law. Opp. Br. at 23.  
III. 
The Amended Complaint fails to state a claim for breach of contract. 
Plaintiffs identify no term in the Promissory Note where Prestamos promised to fund their 
loans. They point, instead, to terms setting out their obligations as borrowers in the event a loan 
was funded. They try also to graft SBA regulations onto the contract documents, despite no 
contractual terms that incorporate those regulations and no legal doctrine that does so.  
 
To hold a lender liable for not having funded a putative borrower’s loan, there must have 
been a promise by the lender actually to fund the loan. It is not enough that certain documents 
(even a promissory note) reference a loan and the terms on which a borrower will repay it. That is 
the holding of Mark Andrew of Palm Beaches, Ltd. v. GMAC Commercial Mortgage Corp., 265 F. 
Supp. 2d 366, 380–81 (S.D.N.Y. 2003), a case directly on point that Plaintiffs do not meaningfully 
distinguish. There, as here, a promissory note and other loan documents identified a loan by 
amount and set out the terms on which the borrower would secure and repay it. But the court held 
that there was no contractual obligation to lend money because none of the documents contained 
“any obligation, promise, or undertaking” by the lender to fund any loan. Id. 
 
Plaintiffs cite to Gallagher v. Upper Darby Township, 539 A.2d 463, 473 (Pa. Commw. 
1988), and its discussion of the contract doctrine of necessary implication, whereby a court may 
sometimes supply an omitted essential term. See Restatement (Second) of Contracts § 204. But 
“[t]he court may imply a missing term in a parties’ contract only when it is necessary to prevent 
injustice and it is abundantly clear that the parties intended to be bound by such term.” Kaplan v. 
Cablevision of PA, Inc., 671 A.2d 716, 720 (Pa. Super. 1996). Here, Plaintiffs are obligated to repay 
the loan (if at all) only in the event a loan is made; where there is no loan, there is no obligation to 
repay it. Moreover, it is by no means “abundantly clear” that the parties intended to be bound by a 
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term that would commit Prestamos to fund the loan: had the parties intended such a term, they 
could have just as easily included it, say, in a loan commitment letter. 
 
Plaintiffs are also wrong that the loan documents incorporate PPP regulations. First, such 
incorporation appears nowhere in the contract text. Second, the principle that “[s]tatutes that 
pertain to the subject matter of a contract form a part of the contractual obligation as if actually 
incorporated into the contract,” Willisch v. Nationwide Ins. Co. of Am., 852 F. Supp. 2d 582, 607 
(E.D. Pa. 2012), is one specific to insurance contracts. Id. (“Specifically, applicable statutory 
provisions of insurance law are deemed incorporated into insurance contracts.”). Even in that 
context, courts reject incorporation of regulations (as opposed to statutes). Santos v. Ins. Placement 
Facility of Pa., 626 A.2d 1177 (Pa. Super. 1993). Plaintiffs’ cited cases are not contrary. See 
Heyman v. Citimortgage, Inc., No. 14-cv-1680, 2019 U.S. Dist. LEXIS 128238 (D.N.J. June 27, 
2019) (incorporating HAMP regulations as implied contract terms where dealings expressly 
referenced those regulations); Skurka Aerospace, Inc. v. Eaton Aerospace, LLC, No. 08-cv-1565, 
2011 U.S. Dist. LEXIS 33489 (N.D. Ohio Mar. 29, 2011) (same, with respect to FAA regulations). 
Plaintiffs’ mischaracterization of the equities does not help them, either. It is grossly unfair 
to characterize Prestamos’s not disputing factual allegations that must, for purposes of Rule 
12(b)(6), be accepted as true as somehow constituting their admission. And regardless of the merits 
of Plaintiffs “quasi-estoppel” theory, Plaintiffs provide no authority for the proposition that the 
doctrine may bar a legal defense to a claim in addition to the claim itself. Prestamos enjoys the 
right to defend against Plaintiffs’ baseless allegations. 
IV. 
Plaintiffs agreed to release all claims against Prestamos. 
Plaintiffs contend that Prestamos’s alleged breach invalidates the release in the Note. See 
Opp. Br. at 24. But Prestamos did not breach the Note, see supra; accordingly, the release cannot 
be invalid on that basis. In any event, Plaintiffs are wrong that an allegedly breaching party cannot 
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take advantage of a contractual release—it is common (and is the case here) for releases expressly 
to encompass contract claims. See, e.g., Charbonneau v. Chartis Prop. Cas. Co., No. 13-cv-4323, 
2015 U.S. Dist. LEXIS 85428, at *32 (E.D. Pa. July 1, 2015); Equitrans Servs., LLC v. Precision 
Pipeline, LLC, 154 F. Supp. 3d 189, 196–97 (W.D. Pa. 2015).  
Further, Plaintiffs’ interpretation of the release language is confined to seven words out of 
a hundred—that the release encompasses Lender conduct “on or prior to the date hereof.” Opp. Br. 
at 24–25 (citing Note § 10). According to the rest of the contract language, however, Prestamos is 
released from all existing and future claims, which “have accrued or may accrue,” “arising out of 
or in any way connected to” Prestamos’s extension of credit to Plaintiffs or any of its conduct. 
Note § 10 (emphasis added). Because Plaintiffs’ claims clearly arise out of the extension of credit 
Prestamos allegedly agreed to when Plaintiffs executed their notes, the release applies.  
For this reason, Plaintiffs’ reliance on Bowersox is misplaced. See Opp Br. at 26 (citing 
Bowersox Truck Sales & Serv. v. Harco Nat’l Ins. Co., 209 F.3d 273, 279 (3d. Cir. 2000)). The 
release language at issue in Bowersox did not expressly include future accruing claims, and 
therefore the court found that a bar of such claims was not “within the contemplation of the parties 
when the release was given.” Id. (internal citation omitted). By contrast, the release in the Note 
explicitly bars future accruing claims and, therefore, precludes Plaintiffs’ claims, no matter that 
they accrued “no earlier than 10 days after the SBA approval” of their loans. Cf. Opp. Br. at 26. 
Finally, this language accords with the policy animating the PPP, contra Opp. Br. at 26, which 
sought to incentivize lender participation without enmeshing them in costly litigation brought by 
dissatisfied borrowers. The release squarely bars Plaintiffs from bringing their claims.  
V. 
Plaintiffs fail to state a claim for violation of the CA UCL. 
Because Plaintiffs do not plausibly allege that Prestamos breached any legal obligation 
owed to them under the CARES Act or the PPP program, they cannot establish Prestamos’s 
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conduct was “unlawful” for purposes of the California Unfair Competition Law. Cal. Bus. & Prof. 
Code § 17200; Se. Pa. Transp. Auth. v. Gilead Scis., Inc., 102 F. Supp. 3d 688, 707 (E.D. Pa. 2015). 
Prestamos’s discretion regarding its funding of PPP loans extended not just to whether to approve 
or deny applications, but to determining whether an applicant was “ineligible” for a PPP loan 
entirely. Profiles, Inc. v. Bank of Am. Corp., 453 F. Supp. 3d 742, 748 (D. Md. 2020). Plaintiffs 
also fail to “tether” the alleged unfairness element to a legislatively declared policy, as no part of 
the CARES Act required Prestamos to fund every PPP loan applicant, regardless of eligibility. 
Plaintiffs are wrong that Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), 
has no application at the pleadings stage. Sonner itself was a 12(b)(6) case. See id. at 838 
(restitution claim at issue had been dismissed in response to 12(b)(6) motion); Elizabeth M. Byrnes, 
Inc. v. Fountainhead Com. Cap., LLC, No. 20-cv-4149, 021 U.S. Dist. LEXIS 227046 (C.D. Cal. 
Nov. 24, 2021) (dismissing equitable PPP claim under Sonner at the pleadings stage). It is of no 
moment that Plaintiffs alleged equitable relief in the alternative. See Sharma v. Volkswagen AG, 
524 F. Supp. 3d 891, 907 (N.D. Cal. 2021) (“The issue is not whether a pleading may seek distinct 
forms of relief in the alternative, but rather whether a prayer for equitable relief states a claim if 
the pleading does not demonstrate the inadequacy of a legal remedy. On that point, Sonner holds 
that it does not.”). Plaintiffs’ restitution claim further fails because they neither possessed the funds 
at issue nor have an ownership interest in them; Prestamos retained discretion to withhold PPP 
funds for which Plaintiffs were ineligible. Profiles, 453 F. Supp. 3d at 748.  
VI. 
Plaintiffs fail to state a claim under the ICFA. 
Plaintiff Ahmadou’s claim under the Illinois Consumer Fraud and Deceptive Business 
Practices Act (“ICFA”) fails, firstly, because it duplicates Plaintiffs’ breach of contract claim. See 
Turner v. Orthopedic & Shoulder Ctr., S.C., 82 N.E.3d 801, 807 (Ill. Ct. App. 2017). The “falsely 
communicated” promises alleged in the Amended Complaint to support this claim all stem from 
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the contract documents. Am. Compl. ¶ 250 (pointing to promise to act as a “Lender”; holding 
Plaintiff Ahmadou to obligations “in consideration of Prestamos . . . making the . . . loan[s]”; and 
promise to “fulfill the terms of its written agreements”). Plaintiffs now add, in their response, that 
Prestamos induced Plaintiff Ahmadou to enter into the agreement by “accepting plaintiff’s 
application and the SBA’s approval,” Opp. Br. at 30, thereby “locking” him in to relying on 
Prestamos for the loan. But that theory of inducement appears nowhere in the Amended 
Complaint’s allegations purporting to support the ICFA claim. Anyway, Plaintiffs still have failed 
to allege that Prestamos had the requisite intent to deceive. Cohen v. Am. Sec. Ins. Co., 735 F.3d 
601, 608 (7th Cir. 2013); Avery v. State Farm Mut. Auto Ins. Co., 835 N.E.2d 801, 844 (Ill. 2005) 
(“[A] ‘deceptive act or practice’ involves more than the mere fact that a defendant promised 
something and then failed to do it.”). 
The ICFA claim also fails because Plaintiffs have failed to plead it with particularity. They 
contend that the heightened pleading standard does not apply because Plaintiff Ahmadou alleges 
“unfair” business practices rather than “deceptive” ones under the statute. But the law is clear that 
“unfair” practices allegations that “are clearly premised upon the primary claim” of deception still 
trigger Rule 9. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 737 (7th Cir. 2014) (“Simply 
adding language of ‘unfairness’ instead of ‘misrepresentation’ does not alter the fact that 
[plaintiff’s] allegations are entirely grounded in fraud under the ICFA.”). And Plaintiffs continue 
to make nothing but circular and “bare assertion[s] of unfairness without describing in what 
manner the [conduct] either violate[s] public policy or [is] oppressive.” Robinson v. Toyota Motor 
Credit Corp., 775 N.E.2d 951, 963 (Ill. 2002). Simply reciting the legal standard is not enough.  
VII. 
Plaintiffs fail to state a claim under the cited Ohio statutes cited. 
Plaintiffs do not dispute that the Ohio Deceptive Trade Practices Act, like the Lanham Act, 
bars consumer suits. See Borden v. Antonelli Coll., 304 F. Supp. 3d 678, 685 (S.D. Ohio 2018). 
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Nor do they dispute that they must allege an “injury to a commercial interest in reputation or sales.” 
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 132 (2014). Instead of 
addressing how they have alleged such an injury, Plaintiffs argue that they state an ODTPA claim 
because, they say, Prestamos induced Plaintiff Stalnaker to enter into the loan agreements and 
“lock[ed]” her in. Opp. Br. at 34. As with the ICFA claim, however, that theory is not alleged in 
the complaint, which instead rests on the promises allegedly made in the contract documents. Am. 
Compl. ¶ 268. That the PPP loan was for Plaintiff Stalnaker’s business does not mean she has 
suffered an injury to a commercial interest in reputation or sales. The ODTPA claim fails. 
CONCLUSION 
For the foregoing reasons, and for the reasons set forth in its Opening Brief, Prestamos 
respectfully requests that the Court dismiss Plaintiffs’ Amended Complaint, with prejudice. 
 
Dated: March 17, 2022 
BALLARD SPAHR LLP 
 
 
By: /s/ Marcel S. Prat t 
 
 
 
 
Marcel S. Pratt (Pa. ID 307483) 
 
 
Michael R. McDonald (Pa. ID 326873) 
 
 
Alexa L. Levy (Pa. ID 327973) 
 
 
PrattM@ballardspahr.com 
 
 
McDonaldM@ballardspahr.com 
 
 
 
 
 
LevyA@ballardspahr.com 
 
 
 
HERRERA ARELLANO LLP 
 
 
 
 
Roy Herrera* 
 
 
Daniel A. Arellano* 
 
 
Jillian Andrews* 
 
 
Roy@ha-firm.com 
 
 
Daniel@ha-firm.com 
 
 
Jillian@ha-firm.com 
 
 
*pro hac vice admission to be sought 
 
 
 
Attorneys for Defendant 
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