Court filing
Memorandum in Support re 138 Motion to Certify Class — Marshall v. Prestamos CDFI, LLC (Dkt. 139, E.D. Pa. No. 5:21-cv-04337)
Filed September 6, 2024 in Marshall v. Prestamos CDFI, LLC; one of 344 filings from this case.
Record facts
| Court | U.S. District Court for the Eastern District of Pennsylvania |
|---|---|
| Filed | 2024-09-06 |
U.S. District Court for the Eastern District of Pennsylvania · No. 5:21-cv-04337-JMG · Doc. 139 · 2024-09-06 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALICIA MARSHALL, et al., individually
and on behalf of all others similarly situated,
Plaintiffs,
v.
PRESTAMOS CDFI, LLC,
Defendant.
Civil Action No. 5:21-cv-04337-JMG
BRIEF IN SUPPORT OF PLAINTIFFS’
MOTION FOR CLASS CERTIFICATION
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 1 of 28
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Table of Contents
Page(s)
Introduction ..................................................................................................................................... 1
Factual Background ........................................................................................................................ 4
Legal Standard ................................................................................................................................ 6
Argument ........................................................................................................................................ 6
I.
The Proposed Classes are Ascertainable ................................................................. 6
II.
Plaintiffs Satisfy the Requirements of Rule 23(a) .................................................. 7
III.
Plaintiffs Satisfy the Requirements of Rule 23(b)(2) ........................................... 11
IV.
Plaintiffs Satisfy the Requirements of Rule 23(b)(3) ........................................... 12
V.
Plaintiffs’ Counsel Satisfy the Requirements of Rule 23(g) ................................. 18
Conclusion .................................................................................................................................... 19
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 2 of 28
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Table of Authorities
Page(s)
Cases
Accord Bombin v. Southwest Airlines Co.,
2023 WL 5832166 (E.D. Pa. Sept. 7, 2023) ..............................................................................6
Allapattah Servs., Inc. v. Exxon Corp.,
333 F.3d 1248 (11th Cir. 2003) ...............................................................................................17
Amgen Inc. v. Conn. Ret. Plans & Tr. Funds,
568 U.S. 455 (2013) .................................................................................................................13
In re Baby Prods. Antitrust Litig.,
708 F.3d 163 (3d Cir. 2013).................................................................................................7, 18
Barnes v. Am. Tobacco Co.,
161 F.3d 127 (3d Cir. 1998).....................................................................................................11
Comcast Corp. v. Behrend,
569 U.S. 27 (2013) ...................................................................................................................13
Cox v. Spirit Airlines, Inc.,
2022 WL 939732 (E.D.N.Y. Mar. 3, 2022) .............................................................................17
Cruson v. Jackson Nat’l Life Ins. Co.,
954 F.3d 240 (5th Cir. 2020) ...................................................................................................16
Ellsworth v. U.S. Bank, N.A.,
2014 WL 2734953 (N.D. Cal. June 13, 2014) .........................................................................17
Gillis v. Respond Power, LLC,
677 Fed. App’x 752 (3d Cir. 2017)......................................................................................8, 15
Greathouse v. Capital Plus Financial, LLC,
2023 WL 5746927 (N.D. Tex. Sept. 6, 2023).................................................................. passim
Hammersmith v. TIG Ins. Co.,
480 F.3d 220 (3d Cir. 2007).....................................................................................................17
Hargrove v. Sleepy’s LLC,
974 F.3d 467 (3d Cir. 2020).......................................................................................................6
Hohider v. United Parcel Serv., Inc.,
574 F.3d 169 (3d Cir. 2009).....................................................................................................11
In re Hydrogen Peroxide Antitrust Litig.,
552 F.3d 305 (3d Cir. 2008).......................................................................................................6
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 3 of 28
iii
Karpf v. Mass. Mut. Life Ins. Co.,
2018 WL 1142189 (E.D. Pa. Mar. 1, 2018) .............................................................................17
La Fata v. Raytheon Co.,
207 F.R.D. 35 (E.D. Pa. 2002) (Brody, J.)...............................................................................16
Lyn-Lea Travel Corp. v. American Airlines, Inc.,
283 F.3d 282 (5th Cir. 2002) ...................................................................................................16
Meyer v. CUNA Mut. Grp.,
2006 WL 197122 (W.D. Pa. Jan. 25, 2006) .............................................................................16
In re Modafinil Antitrust Litig.,
837 F.3d 238 (3d Cir. 2016).......................................................................................................7
Myers v. Jani-King of Phila., Inc.,
2019 WL 4034736 (E.D. Pa. Aug. 26, 2019) ..................................................................8, 9, 12
Neale v. Volvo Cars of N. Am., LLC,
794 F.3d 353 (3d Cir. 2015).....................................................................................................14
In re Niaspan Antitrust Litig.,
397 F. Supp. 3d 668 (E.D. Pa. 2019) .......................................................................................10
In re OSB Antitrust Litig.,
2007 WL 2253425 (E.D. Pa. Aug. 3, 2007) ............................................................................16
Page v. State Farm Life Insurance Company,
584 F. Supp. 3d 200 (W.D. Tex. 2022)....................................................................................16
Phillips Petroleum Co. v. Shutts,
472 U.S. 797 (1985) .................................................................................................................17
In re Processed Eggs Products Antitrust Litig.,
312 F.R.D. 124 (E.D. Pa. 2015) ...............................................................................................11
In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions,
148 F.3d 283 (3d Cir. 1998).....................................................................................................17
Red Barn Motors, Inc. v. NextGear Capital, Inc.,
915 F.3d 1098 (7th Cir. 2019) .................................................................................................15
Rudel Corp. v. Hartland Payment Sys., Inc.,
2017 WL 4422416 (D.N.J. Oct. 4, 2017).................................................................................16
Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc.,
601 F.3d 1159 (11th Cir. 2010) ...............................................................................................16
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 4 of 28
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Shelton v. Bledsoe,
775 F.3d 554 (3d Cir. 2015).....................................................................................................11
Spear v. Fenkell,
2016 WL 5661720 (E.D. Pa. Sept. 30, 2016) ..........................................................................15
Springfield Hospital, Inc. v. Guzman,
28 F.4th 403 (2d Cir. 2022) .......................................................................................................9
Stechert v. The Travelers Home & Marine Ins. Co.,
2021 WL 5235221 (E.D. Pa. Nov. 9, 2021) ........................................................................9, 10
Stewart v. Abraham,
275 F.3d 220 (3d Cir. 2001).......................................................................................................7
Sullivan v. DB Inv.,
Inc., 667 F.3d 273, 301 (3d Cir. 2011) ..............................................................................13, 17
Tyson Foods, Inc. v. Bouaphakeo,
577 U.S. 442 (2016) .................................................................................................................12
In re U.S. Foodservice Inc. Pricing Litigation,
729 F.3d 108 (2d Cir. 2013).....................................................................................................17
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) .............................................................................................................8, 11
Zehentbauer Family Land, LP v. Chesapeake Exploration, L.L.C.,
935 F.3d 496 (6th Cir. 2019) ...................................................................................................17
Zeno v. Ford Motor Co., Inc.,
238 F.R.D. 173 (W.D. Pa. 2006) .............................................................................................16
Statutes
CARES Act ..................................................................................................................................3, 4
Other Authorities
Federal Register, Volume 86, Rule 3692 .........................................................................................8
Federal Register, Volume 86, Rule 3710 .........................................................................................8
Fed. R. Civ. P. 23 ................................................................................................................... passim
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 5 of 28
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Table of Abbreviations
CARES Act: Coronavirus Aid, Relief and Economic Security Act
Plaintiffs: Alicia Marshall, Paris Townsend, Kristina Henderson, Jamie Jones, John
Martin, Gregory Lloyd, Alyshia Johnson, Lametria Marvel, Jahbrael Horne and Sharon Bradley
Smith
Defendant or Prestamos: Prestamos CDFI, LLC
CDFI: Community Development Financial Institution
Classes: the Damages Class and Declaratory Judgment Class set forth in Plaintiffs’
Motion for Class Certification
CPLC: Prestamos’ parent corporation Chicanos Por La Causa, Inc.
Class Member States: California, Michigan, Arizona, Utah, Texas, Indiana, Mississippi
and New York
Ex: Exhibits filed as part of Plas’ App’x
LSP: Lender Service Provider, which in Prestamos’ case was Blueacorn PPP, LLC
and/or its affiliates (“Blueacorn”)
Loan Documents: the Note, Additional and Correction Documents Agreement (Errors
and Omissions Agreement), Business Purpose Statement, Notice - No Oral Agreements, Written
Consent of Governing Body, IRS W-9 Request for Taxpayer Identification Number and
Certification, and Information and Bank Account Certification and Authorization form (see, e.g.,
ECF No. 108 at Exhibit A; Plas’ App’x Exs 1-10)
PARs: Pledge and Advance Request forms for PPPLF advances
Plas’ App’x: Appendix in Support of Plaintiffs’ Motion for Class Certification
Plaintiffs’ Counsel: Bailey & Glasser LLP and Nolan Heller & Kauffman LLP
PPP: Paycheck Protection Program
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 6 of 28
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PPPLF: Paycheck Protection Program Liquidity Facility
SBA: U.S. Small Business Administration
TAC: Plaintiffs’ Third Amended Class Action Complaint (ECF No. 108)
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 7 of 28
Plaintiffs1 respectfully submit this brief in support of their motion for class certification.
Introduction
This is a single count breach of contract case. Plaintiffs allege that Prestamos failed to
fund their PPP loans in breach of the parties’ Loan Documents, falsely reported the loans to the
SBA as funded to get the fee, and that Plaintiffs remain obligated to repay those proceeds back to
Prestamos. The central questions concerning liability are contingent on, and arise from, the same
standardized provisions in the parties’ Loan Documents and PPP rules, namely: whether 1)
Prestamos breached the Loan Document agreements; 2) class members are bound to repay; 3)
class members were denied an opportunity for forgiveness; 4) Prestamos is released from
liability based on the Loan Documents; and 5) Prestamos is estopped from claiming any attempt
to fund a class member loan immunizes it since, in this case, it also both falsely reported to the
SBA that the loans were funded, and obtained the loan processing fee.
As the Court is also aware, the ultimate determination of these questions is not at issue
now. See, e.g., ECF No. 102 ¶ 2 (directing that discovery “proceed in two phases: (1) initially on
the Rule 23 class certification; and (2) all merits discovery necessary for trial and motions for
summary judgment”). What is at issue now is whether these questions are susceptible to
classwide proof. The answer to that is “yes.”
The language of the Loan Documents applies and is uniform without distinction
classwide. The controlling provisions contain no material difference. At trial, Plaintiffs will also
present other common evidence to support their claim via Prestamos’ own SBA Rule 1502s
reporting that the loans were funded so Prestamos could get the fee, and Prestamos’ PARs to
1
Unless otherwise noted, all capitalized terms have the meaning set forth in the Table of
Abbreviations; all paragraph citations are to Plaintiffs’ TAC; all emphasis is added; and all
internal quotations and citations are omitted.
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 8 of 28
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obtain advances from the PPPLF that were secured by, and to be used to fund, the loans. See Ex
17 (Plaintiffs’ Proposed Trial Plan). This evidence will show that Prestamos obtained the fees
and PPPLF advances based on the loans, and thus is also uniform.
Faced with overwhelmingly common claims and proof, Prestamos will dodge and
redirect. It will paint itself as a simple do-good CDFI “with the mission of building strong
communities” and “supporting small businesses” in five states per an employee (David Castillo)
declaration (see n.2 infra; quoting Castillo Aug. 9, 2024 Decl. ¶¶ 4, 6-7), when in truth its PPP
lending was national in scope and larger than Bank of America, PNC, TD Bank and Wells Fargo
combined. ¶ 9. It will blame the Plaintiff victims. It will claim they’re the fraudsters despite all
being SBA approved; ignore that they’re still on the hook to repay and have stepped up to
intrusive discovery and cross-examination for basic fairness and funding; and avoid the nearly
$1.2 billion total, and over $314 million in net, fees (after sharing with its LSP Blueacorn, with
whom it’s reportedly in a dispute over the fees), it milked from the PPP per CPLC’s own
Financial Statements (¶ 12), the over $7.1 billion in PPPLF advances it obtained including on
unfunded loans (¶ 113) and the resignation of CPLC’s most senior executive (and Prestamos
Board member) in late 2023 amid reported financial malfeasance, where one or more other shoes
also could drop any day, civil and/or criminal. ¶ 38; Ex 30 ¶ 1 (inquiring whether Plaintiffs
communicated with any governmental agency). It will manufacture front-end PPP application
and back-end bank ACH code funding issues, and speculate about alleged forgiveness amount
discrepancies but ignore the threshold requirement that class members couldn’t certify how they
used proceeds they never received as even Prestamos’ experts concede. Ex 14 ¶ 6; Ex 16 ¶¶ 21-
24; Ex 19 p. 15. It will ask the Court to elevate what its proposed expert asserted 12 times are
“individualized” defenses (improperly, because that’s a question for the Court; July 12, 2024
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 9 of 28
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report Kenneth Swain ¶¶ 15-16, 27 (twice), 35, 38-39, 52-53, 78, 86, 88) to deny class members
an opportunity for any relief in particularly aggravating circumstances where they’re still bound
to repay with interest even if Prestamos’ reasons why it failed to fund are credited.
The stakes couldn’t be higher for the actual victims. The parties can agree that, although
procedural, the class certification issue is pivotal. For class members, this case rises or falls
based on it. Without it, small business owners a widely bipartisan Congress passed the CARES
Act to help will have no chance at any relief and still be on the hook to repay Prestamos. With it,
the already substantially narrowed, non-national class has a chance.
This is not an advocate’s typically excess zeal; it’s very real world. By Prestamos’ own
account, there are 7,417 class members in just the already reduced eight total Class Member
States deprived of $122,489,761.00 in total PPP loan principal for which Prestamos was
nevertheless paid $17,935,811.00 in fees. Ex 27. Prestamos has already sought repayment from
some. E.g., ¶¶ 253-254; Ex 19 pp. 3, 6. Any argument Plaintiffs could obtain counsel to sue
individually is not real world; even with full-boat consequential damages, their SBA-approved
loans ranged from $1,875 (Henderson; ¶ 204) to just $20,832 (Lloyd; ¶ 288).
The equities also couldn’t be more one-sided. Plaintiffs and class members by definition
were denied funding and forgiveness, and remain bound to repay amid Prestamos’ false SBA
Form 1502 reporting -- or else they’re not eligible to be class members. But for Prestamos’ false
1502s, the loans would be cancelled and Plaintiffs wouldn’t be bound to repay as Plaintiffs’
proposed expert, former Schedule C-appointed SBA Chief of Staff William Manger, attests. Ex
14 ¶ 4 (“The choice is one or the other. If the PPP loan was not fully disbursed as the rules
required, the loan should have been cancelled and any loan processing fee returned.”). Accord Ex
19 pp. 11-12, 16. On the flip side, Prestamos knowingly exploited an emergency government
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program intended to help business owners in a dire time, shamefully reaped what its own internal
document calls a “windfall” and continues to oppose these small borrowers via its many lawyers
and scorched earth defense to throw all up it can for anything to stick. That is not community
building. Depriving over 7,417 small business owners of over $122.4 million in federally-
guaranteed, forgivable loans is community hurting.
Because the claims of Plaintiffs’ and class members share the same core factual and
legal issues, are susceptible to common evidence and proof, and meet all requirements of Rules
23(a)(b)(2) and (3), the Damages and Declaratory Judgment Classes should be certified.
Factual Background
Following the worldwide outbreak of COVID-19, Congress passed the CARES Act in
March 2020 to assist businesses an integral part of which was the PPP. Administered by the
SBA, the PPP authorized $813.7 billion in PPP loans through May 31, 2021. ¶ 30. PPP loans are
guaranteed by the SBA and designed to be forgiven. To ensure that businesses received their PPP
loan proceeds quickly and efficiently, the SBA delegated lending to authorized private PPP
lenders and required approved PPP loans to be funded for the lender to get a fee. ¶ 39.
Prestamos was an authorized PPP lender. In 2020, it processed only 935 PPP loans for
less than $27 million and $1.3 million in fees. ¶ 6. After PPP loan fees were increased in
December 2020 to encourage more loans to underserved small businesses (¶¶ 35-36), it
contracted with Blueacorn and committed to fund 494,415 PPP loans in 2021 for over $7.6
billion (¶ 61), and received at least $7,144,136,133.27 from the PPPLF to fund them. ¶ 71.
Although Prestamos has disputed the meaning of “fund” and “disburse” in the loan context, it
contradictorily asserts via the Castillo declaration (at ¶ 51) that it “returned the credit advances
from the Federal Reserve for loans that were ultimately not funded” -- without identifying the
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amount, which loans, whether it included class member loans, the status of income it made or
any other detail (which Plaintiffs intend to pursue in Phase II discovery).
Plaintiffs are or were sole proprietors approved by the SBA for their loans; signed and
returned to Prestamos the Loan Documents and other loan documentation; and Prestamos
“ultimately” failed to “fund” their loans, falsely reported to the SBA they were funded to get the
fee and already sought repayment from some. ¶¶ 297-98, 376-77; Ex 25 (SBA Form 1502
reports); Exs 1-10 (Plaintiffs’ Loan Documents); Ex 19 pp. 3, 6 (testimony as to repayment).
Each Loan Document in the same form language identifies the SBA-approved PPP loan
number, amount, “Borrower” and “Lender”; states that, “[i]n return for the Loan, Borrower
promises” to pay the principal plus “interest on the unpaid principal balance, and all other
amounts required by this Note” back to Prestamos if not forgiven; contains other terms including
that “[a]ll individuals and entities signing this Note are jointly and severally liable”; and states
that, “[b]y signing below, each individual or entity becomes obligated under this Note as
Borrower.” See, e.g., ECF No. 108 Ex A ¶¶ 1, 9, 11.
The Additional Agreement states that, “[i]n consideration of Prestamos CDFI, LLC …
making the above loan, each of the undersigned, jointly and severally, do hereby agree … ” and
that Prestamos “is relying on this agreement in making the above loan ….” Id. ¶¶ 1, 2, 5.
The “Notice - No Oral Agreements” governs the “Loan by Lender, Prestamos CDFI,
LLC to Borrower”; states that “THE WRITTEN LOAN AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES …”; defines “Loan Agreement”;
and is executed by both parties. Id. ECF p. 113 (original emphasis). The Information and Bank
form identifies where Prestamos should “deposit the loan proceeds[.]” Id. ECF p. 117. In
addition, applicable PPP rules are incorporated in the Loan Documents, bound PPP lenders to
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report accurately on SBA Form 1502s and PARs, and obtain fees only on loans they ultimately
funded. ¶¶ 65, 71-72, 386-92 (quoting PPP rules); Ex 14 ¶ 4; Ex 16 ¶¶ 13-15; Ex 19 pp. 9-12.
Prestamos failed to “ultimately fund” the loans despite numerous follow-up attempts by
many Plaintiffs and promising several a dash card where there were bank issues. Ex 19 pp. 6-7.
Many others have similarly complained. See, e.g., ¶¶ 126-29, 372(a)-(g), 373(a)-(xx). Plaintiffs
and class members have been damaged by being deprived of PPP loans and still obligated to
repay them; precluded from even seeking loan forgiveness as the PPP intended and widely did
(Ex 29; Ex 19 pp. 14-15); and prevented from securing PPP loans from other lenders. Ex 19 p.
11.
Legal Standard
“[E]very putative class action must satisfy the four requirements of Rule 23(a) and the
requirements of either Rules 23(b)(1), (2), or (3).” Hargrove v. Sleepy’s LLC, 974 F.3d 467, 470
n.1 (3d Cir. 2020). Accord Bombin v. Southwest Airlines Co., 2023 WL 5832166, at *6 (E.D. Pa.
Sept. 7, 2023) (Gallagher, J.). “’[T]rial courts must engage in a rigorous analysis and find each of
Rule 23’s requirements met by a preponderance of the evidence before granting class
certification.” Id. at *7. “Rigorous analysis” means the court must “resolve all factual or legal
disputes relevant to class certification, even if they overlap with the merits—including disputes
touching on elements of the cause of action.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d
305, 307 (3d Cir. 2008).
Argument
I.
The Proposed Classes are Ascertainable
A class must also be “’currently and readily ascertainable based on objective criteria.’”
Hargrove, 974 F.3d at 477. Accord Manual for Complex Litigation (Fourth) § 21.222 (2004).
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 13 of 28
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Class members are already ascertained in this case. Prestamos’ own records identify them, on a
total and a specific Class Member State basis. Ex 27. Thus, this requirement is satisfied.
II.
Plaintiffs Satisfy the Requirements of Rule 23(a)
Numerosity: Rule 23(a)(1) requires that a class be “so numerous that joinder of all
members is impracticable.” “[I]f the named plaintiff demonstrates that the potential number of
plaintiffs exceed 40, the first prong of Rule 23(a) has been met.” Stewart v. Abraham, 275 F.3d
220, 226-27 (3d Cir. 2001). Each Class Member State has more than 40 members. Ex 27. Class
members are also geographically dispersed and satisfy the other factors to determine
impracticability of joinder. In re Modafinil Antitrust Litig., 837 F.3d 238, 253 (3d Cir. 2016)
(factors include “judicial economy, the claimants’ ability and motivation to litigate as joined
plaintiffs, the financial resources of class members, the ability to identify future claimants, and
whether the claims are for injunctive relief or for damages”).
The “ability to litigate via joinder” and “financial resource” factors bear emphasis. As the
Third Circuit stated in Modafinil, it “is often still uneconomical for an individual with a negative
value claim to join a lawsuit.” Id. at 257. “As defined by the Third Circuit, a negative value
claim is a ‘claim[] that could not be brought on an individual basis because the transaction costs
of bringing an individual action exceed the potential relief.’” In re Baby Prods. Antitrust Litig.,
708 F.3d 163, 179 (3d Cir. 2013). That is also the case given the loan amounts here.
Further, Plaintiffs are or during the pandemic were in small businesses such as home
healthcare (¶¶ 15, 20, 30), hair (¶ 17) and driving (¶¶ 25, 27, 32). The only reasonable inference
is that they lack the financial resources necessary to hire counsel to pursue their own claim. See
Modafinil, 837 F.3d at 257-58 (“claims below $1 million … may be uneconomical” to litigate;
stating that a “broader class action goal” is “providing those with small claims reasonable access
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 14 of 28
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to a judicial forum for the resolution of those claims”).
Commonality: Rule 23(a)(2) requires that “there are questions of law or fact common to
the class.” This turns on whether there is “a common contention … that is capable of classwide
resolution—which means that determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 350 (2011). See also Myers v. Jani-King of Phila., Inc., 2019 WL 4034736, at *4
(E.D. Pa. Aug. 26, 2019) (commonality “is easily met”).
Plaintiffs’ claim that Prestamos breached the standard form Loan Documents, falsely
reported the loans as funded and that they are still bound to repay establishes commonality. See,
e.g., Gillis v. Respond Power, LLC, 677 Fed. App’x 752, 756 (3d Cir. 2017) (“Because form
contracts should be interpreted uniformly as to all signatories, Pennsylvania and federal courts
have recognized that claims involving the interpretation of standard form contracts are
particularly well-suited for class treatment.”).
Here, moreover, the Classes have been narrowed from those alleged in Greathouse v.
Capital Plus Financial, LLC, 2023 WL 5746927 (N.D. Tex. Sept. 6, 2023) (“CPF”). There, the
court rejected commonality because “[t]he central question … is whether CPF failed to fund
Plaintiffs’ loans or timely cancel them” under the 20 day cancellation rule of 86 FR 3692, 3710,
which the court held applies “only … when a borrower fails to submit ‘required
documentation.’” Id. at *5. Here, by contrast, that rule is inapplicable because the Classes
include only those who also submitted all required documentation and as to whom Prestamos
filed false 1502s. Thus, the central question here is whether class member loans should ever have
been cancelled as Plaintiffs’ expert contends. Ex 14 ¶ 4; accord Ex 19 pp. 11, 16. Although
Prestamos and its experts have not squarely addressed let alone disputed that question, the issue
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now isn’t to adjudicate it but instead to determine whether it is capable of classwide resolution in
one stroke. As even the CPF court held, the answer to that is “yes”; “If Defendants were indeed
required to cancel every unfunded loan … the reasons behind their failure to fund do not
matter—thus resolving Plaintiffs’ claims in one stroke.” CPF, 2023 WL 5746927, at *5. Even if
Prestamos disputes whether loans not “ultimately funded” had to be cancelled, that defense is
also a common issue.
Further, whether class members were precluded from obtaining forgiveness, Prestamos
is released and whether it should be estopped from relying on the defense it attempted to fund a
loan since it obtained the fee also raise common legal and factual issues. See Springfield
Hospital, Inc. v. Guzman, 28 F.4th 403, 424 (2d Cir. 2022) (“A borrower must apply for
forgiveness, which will only be granted if specified criteria are met ….”; “Further, if the loans
are not used for statutorily authorized purposes … the loans must be repaid in full”).
Typicality: Rule 23(a)(3) requires that “the claims or defenses of the representative
parties are typical of the claims or defenses of the class.” “’There is a low threshold for
typicality’; provided ‘the interests of the class and the class representatives are aligned,’ courts
will find typicality even when class members’ claims are only legally similar, and not factually
similar.” Stechert v. The Travelers Home & Marine Ins. Co., 2021 WL 5235221, at *5 (E.D. Pa.
Nov. 9, 2021). “Factual differences will not render a claim atypical if the claim arises from the
same event or practice or course of conduct that gives rise to the claims of the class members,
and if it is based on the same legal theory.” Myers, 2019 WL 4034736, at *5.
The same events and conduct give rise to class members’ claims and the claims are based
on the same legal theory. Every class member is governed by the same standardized Loan
Document agreements and subject to interpretation of identical PPP rules. In addition and unlike
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CPF, here all class members also were falsely reported as funded even if Prestamos’
“individualized” defenses regarding why it failed to fund are true. Plaintiffs’ claim for a
declaratory judgment against repayment was not even alleged in CPF and is especially important
given Prestamos has already pursued some for repayment. In sum, Plaintiffs and class members
all share the claim that they were “ultimately” not funded regardless of any individualized
defenses why; were falsely reported to the SBA; and share the same interests in proving estoppel
and defeating Prestamos’ defenses including that it is released. Thus, the claim in this case is not
based on conduct unique to Plaintiffs but shared classwide based on the same legal theories.
Adequacy: Rule 23(a)(4) requires that “the representative parties will fairly and
adequately protect the interests of the class.” This tests whether the plaintiff’s attorney is
“qualified, experienced, and generally able to conduct the proposed litigation[,]” and ensures that
the plaintiff “not have interests antagonistic to those of the class.” In re Niaspan Antitrust Litig.,
397 F. Supp. 3d 668, 680 (E.D. Pa. 2019). See also Stechert, 2021 WL 5235221, at *5 (“A class
representative must represent a class capably and diligently, but this is a low bar: a minimal
degree of knowledge about the litigation is adequate.”). Accord Fed. R. Civ. P. 23(g)(4).
Plaintiffs’ and class members’ interests are aligned. All entered into the parties’ Loan
Documents and were falsely reported as funded, denied forgiveness, are still bound to repay and
have been actively involved and attest to their commitment to continue to serve the interests of
the Classes. Ex 18 ¶¶ 4, 7. Plaintiffs’ Counsel combined are experienced litigating commercial
and class action cases and have demonstrated their commitment to this case. Exs 22-23
(attaching firm resumes); § V infra. Prestamos’ ploy to challenge adequacy by inquiring whether
we solicited or promised Plaintiffs anything to serve also uniformly failed. Ex 19 pp. 1, 3-4, 7.
And the stipulated dismissal of 12 original plaintiffs also does not affect adequacy particularly
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 17 of 28
11
amid the onerous discovery demands as one withdrawing plaintiff explains. Ex 20 ¶ 6. In sum, if
appointed we will continue to do all we can to advance the interests of the Classes.
III.
Plaintiffs Satisfy the Requirements of Rule 23(b)(2)
Plaintiffs’ request for a declaratory judgment satisfies the requirements of Rule 23(b)(2).
The Third Circuit has held that Rules 23(b)(2) and (b)(3) “create two remarkably different
litigation devices” and that, to certify a Rule 23(b)(2) class, the challenged conduct must be able
to “’be enjoined or declared unlawful only as to all of the class members or as to none of them.’”
Shelton v. Bledsoe, 775 F.3d 554, 560 (3d Cir. 2015). The Rule 23(b)(2) class must also be
clearly defined, cohesive and seek primarily non-damage relief. Barnes v. Am. Tobacco Co., 161
F.3d 127, 143 (3d Cir. 1998); Wal-Mart, 564 U.S. at 362. “In other words, Rule 23(b)(2) applies
only when a single injunction or declaratory judgment would provide relief as to each member of
the class. It does not authorize class certification when each individual class member would be
entitled to a different injunction or declaratory judgment against the defendant.” Id. at 360.
These requirements are satisfied. Plaintiffs’ claim for a judgment that they need not repay
arises from the same contract and applies to all class members, or none of them. The class is also
cohesive, clearly defined and ascertained; and the claim seeks exclusively non-damage relief.
Where separate Rule (b)(2) and (b)(3) classes are sought that include overlapping
membership as here, Judge Pratter analyzed the issues extensively and held that the court should
also perform a “rigorous analysis” to guard against potential “claims preclusion” -- i.e., the
“danger that those individuals who would have a right to a jury trial to seek damages from
Defendants would lose their ability to bring claims as a result of their being bound to an
unsuccessful Rule 23(b)(2) action.” In re Processed Eggs Products Antitrust Litig., 312 F.R.D.
124, 166-67 (E.D. Pa. 2015). See also Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 201-02
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 18 of 28
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(3d Cir. 2009) (identifying factors where separate Rule 23(b)(2) and (b)(3) classes are sought).
Avoiding potential claims preclusion is important also because a Rule 23(b)(2) class is not
entitled to notice or to opt out, whereas a Rule 23(b)(3) class contains both those rights.
Here, membership is the same among both Classes. But there is no danger class members
would be precluded from seeking damages even if Plaintiffs did not prevail on their (b)(2) claim.
Plaintiffs and the class can still also separately seek damages, whether as part of the Rule (b)(3)
class or as opt outs. The Court has already barred Prestamos from seeking repayment as to one
former plaintiff who was actually funded. See ECF No. 136 ¶ 1 (dismissing “with prejudice and
Defendant (including its parent and subsidiaries) shall not seek repayment of any PPP loan
proceeds or interest from Drevnak or otherwise impair her credit rating”). The case for a
judgment declaring that unfunded class members do not have to repay is even more compelling.
IV.
Plaintiffs Satisfy the Requirements of Rule 23(b)(3)
Predominance: Rule 23(b)(3) requires that “questions of law or fact common to class
members predominate over any questions affecting only individual members.” “The
predominance inquiry ‘asks whether the common, aggregation-enabling, issues in the case are
more prevalent or important than the non-common, aggregation-defeating, individual issues.’
…When ‘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 (2016).
“The focus of the predominance inquiry is on whether the defendant’s conduct was
common as to all of the class members, and whether all of the class members were harmed by
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the defendant’s conduct.” Myers, 2019 WL 4034736, at *5. “There is no ‘claims’ or ‘merits’
litmus test incorporated into the predominance inquiry beyond what is necessary to determine
preliminarily whether certain elements will necessitate individual or common proof.” Sullivan,
667 F.3d at 305. Plaintiffs need to prove that common issues predominate overall, not that they
will prevail on those issues or “prove that each element of her claim is susceptible to classwide
proof.” Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 469 (2013).
Common factual issues predominate. All parties are bound by the same standardized
Loan Document provisions. Those provisions and the fact-finder’s interpretation of them will
drive the answer in a single stroke classwide to the core factual and legal issues in this case:
whether Prestamos’ failure to fund breached those provisions or it is released; whether it
obtained fees and locked class members in by falsely reporting the loans were funded; and
whether class members are still bound to repay and were precluded from forgiveness.
The additional evidence Plaintiffs also intend to use to help interpret the provisions of the
Loan Documents and prove their contract claim at trial is also uniform and will apply classwide,
specifically Prestamos’ own 1502 reports, PAR forms and governing PPP regulations. That same
evidence will also drive resolution of Plaintiffs’ claim that Prestamos’ false reporting and receipt
of the loan fees estops it from relying on any “attempted bank funding” defense.
Common issues predominate also concerning damages for the Rule 23(b)(3) class.
Whether the measure is the SBA-approved loan amount plus interest as supported by Plaintiffs’
expert (Ex 12 ¶ 22) or another measure, damages here “are capable of measurement on a
classwide basis” and “consistent with” Plaintiffs’ theory of liability. Comcast Corp. v. Behrend,
569 U.S. 27, 34, 35 (2013). Prestamos’ position that class certification may deprive Plaintiffs of
potentially greater “individualized” damages is pretextual, hypocritical and meritless. Even if
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 20 of 28
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true, the opt-out rights Rule 23(b)(3) class members have preserves their ability to pursue that
alternative if that is their choice. And the prospect of individualized damages calculations, even
if necessary, is not a bar to class certification in any event. Neale v. Volvo Cars of N. Am., LLC,
794 F.3d 353, 374-75 (3d Cir. 2015); see also 2 W. Rubenstein, Newberg on Class Actions §
4:54 (5th ed. 2012) (“[C]ourts in every circuit have uniformly held that the Rule 23(b)(3)
predominance requirement is satisfied despite the need to make individualized damage
determinations.”) (cited in Tyson Foods, 577 U.S. at 453).
The narrowed class definition to include only those as to whom Prestamos falsely
reported in SBA 1502s that the loans were funded also distinguishes the predominance analysis
of CPF, 2023 WL 5746927, where the class definition did not include this limitation. See id. at
*3 (“Plaintiffs seek certification of … All persons … who, in 2021, applied for PPP loans with
defendant CPF as the lender for whom the SBA provided a loan number, and who executed and
submitted their Loan Documents but did not receive the PPP loan proceeds.”). In CPF, the court
held that “[f]actual predominance is not present” because the many “individualized” defenses as
to why a loan was not funded “likely fall outside the statutory and contractual duties of the PPP
loans at issue.” Id. at *7-8. Here, by contrast, Plaintiffs’ Damages Class brings both the claim,
and the evidence necessary to prove it, directly within the statutory and contractual provisions of
the PPP -- namely, the parties’ Loan Documents, Prestamos’ 1502s and PARs and PPP rules and
the interpretation of those rules. And this, in turn, brings all class member loans together as one
at the core of this case for Rule 23(b)(3) predominance factually and legally: were all class
member loans unfunded and falsely reported as funded and, if so, what are the consequences of
that? Can it even be remotely permissible for class members to have been locked into Prestamos
under the parties’ contracts and PPP, not be funded, and still be liable to repay?
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 21 of 28
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Plaintiffs’ claim that Prestamos’ false 1502 reporting and receipt of the fee for all class
member loans estops it from relying on an attempted bank funding defense is also answerable
classwide in a single stroke. See, e.g., Spear v. Fenkell, 2016 WL 5661720, at *49 (E.D. Pa.
Sept. 30, 2016) (estoppel “applies when it would be unconscionable to allow a person to
maintain a position inconsistent with one in which he … accepted a benefit”); Ex 17 p. 3. Can
Prestamos lawfully lock class members in, falsely report them as funded, deny them forgiveness,
bind them to repay, obtain the fee, and evade class certification or liability by arguing it tried to
fund some of the loans? However disputed and ultimately determined on the merits, this too is a
predominately common factual and legal issue; Prestamos itself asserts “the equitable doctrine of
estoppel” as an affirmative defense. ECF No. 119 p. 64.
Prestamos will likely argue that absent fraud under the PPP, it could keep some fees
made on unfunded loans. Even if so, Prestamos’ haul of over $17.9 million in fees on just class
members’ 7,417 total loans and a pattern of false 1502s may amount to fraud. Critically for now,
the point is that defense is also answerable classwide based on interpretation of PPP rules just
like Prestamos’ defense it is immunized by the release in the parties’ note. In fact, in a separate
ruling in CPF analyzing the release, Judge Pittman sua sponte framed that issue as “‘whether
public policy embedded in [the PPP program and SBA Lending Rules] precludes enforcement of
[the exculpatory clause]” and held that “the exculpatory clause is void.” Greathouse v. Capital
Plus Financial LLC, 2023 WL 5759250, at *15-16 (N.D. Tex. Sept. 6, 2023).
In the Third Circuit and other courts, alleged breaches “of standard form contracts are
particularly well-suited for class treatment.” Gillis, 677 Fed. App’x at 756 (3d Cir. 2017). Accord
Red Barn Motors, Inc. v. NextGear Capital, Inc., 915 F.3d 1098, 1102 (7th Cir. 2019) (“With
such a form contract, almost universally signed without negotiation or modification, there is no
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 22 of 28
16
reason to think that the interpretation of the provision will vary from one signatory to another,
and therefore the issue is one that is capable of a common answer and for which that common
question predominates over questions affecting individual class members.”); Zeno v. Ford Motor
Co., Inc., 238 F.R.D. 173, 197 (W.D. Pa. 2006) (form contracts “present the classic case for
treatment as a class action, and breach of contract cases are routinely certified”); Cruson v.
Jackson Nat’l Life Ins. Co., 954 F.3d 240, 255 (5th Cir. 2020) (form contracts “often lend
themselves to class treatment”); Sacred Heart Health Sys., Inc. v. Humana Military Healthcare
Servs., Inc., 601 F.3d 1159, 1171 (11th Cir. 2010) (“It is the form contract, executed under like
conditions by all class members, that best facilitates class treatment.”); Meyer v. CUNA Mut.
Grp., 2006 WL 197122, at *23 (W.D. Pa. Jan. 25, 2006) (“at least as to the issues of interpreting
the contract language and whether the language is ambiguous, common issues of fact and law
predominate over any individualized inquiries”); Rudel Corp. v. Hartland Payment Sys., Inc.,
2017 WL 4422416, at *4 (D.N.J. Oct. 4, 2017) (“Because Plaintiff’s claims arise out of a
standard, uniform contract and an across-the-board rate increase which Defendant unlawfully
applied to all class members, the Court finds that common issues sufficiently predominate
here.”); Page v. State Farm Life Insurance Company, 584 F. Supp. 3d 200, 221 (W.D. Tex.
2022) ( “standardized form contract, not subject to individual negotiation”).
The fact that Plaintiffs reside or were to be funded in eight Class Member States is no
impediment to class certification because the alleged breaches here are actionable under the laws
of this forum and all eight such States. See, e.g., In re OSB Antitrust Litig., 2007 WL 2253425, at
*17-18 (E.D. Pa. Aug. 3, 2007); La Fata v. Raytheon Co., 207 F.R.D. 35, 48 (E.D. Pa. 2002)
(Brody, J.) (“Plaintiffs showing that there are, at most, minimal differences between the laws of
the different states is a sufficiently credible demonstration that class certification should not be
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denied due to the possibility that the laws of several states might apply”); Lyn-Lea Travel Corp.
v. American Airlines, Inc., 283 F.3d 282, 290 (5th Cir. 2002) (“because contract law is, at its
‘core,’ uniform and non-diverse, there is little risk of inconsistent state adjudication of
contractual obligations”); Zehentbauer Family Land, LP v. Chesapeake Exploration, L.L.C., 935
F.3d 496, 506 (6th Cir. 2019); In re U.S. Foodservice Inc. Pricing Litigation, 729 F.3d 108, 127
(2d Cir. 2013); Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1261 (11th Cir. 2003);
Ellsworth v. U.S. Bank, N.A., 2014 WL 2734953, at *22 (N.D. Cal. June 13, 2014); Cox v. Spirit
Airlines, Inc., 2022 WL 939732, at *17 (E.D.N.Y. Mar. 3, 2022) (“The Second Circuit has also
explained, in the context of breach-of-contract claims, that ‘state contract law defines breach
consistently such that the question will usually be the same in all jurisdictions.’”). Ex 24.
The parties’ note contains no choice of law provision. Instead, it addresses when federal
law applies and limits the claims a “Borrower” may assert against the SBA, but not against the
lender. See, e.g., ECF No. 108 Ex A ¶ 7. Accordingly, in a diversity case as this is, the Court
should apply “the choice of law rules of the forum state, Pennsylvania.” Karpf v. Mass. Mut. Life
Ins. Co., 2018 WL 1142189, at *12 (E.D. Pa. Mar. 1, 2018). If there is no outcome-determinative
difference in the law of the respective states at issue as is also the case here, then the Court
should also apply substantive Pennsylvania law to govern the claim. Hammersmith v. TIG Ins.
Co., 480 F.3d 220, 230 (3d Cir. 2007); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 823
(1985) (courts may apply the substantive law of a single state to adjudicate a multistate class
action). See also In re Prudential Ins. Co. Am. Sales Prac. Litig. Agent Actions, 148 F.3d 283,
315 (3d Cir. 1998) (affirming class certification where “the ‘elements of common law claims
[were] substantively similar”); Sullivan v. DB Inv., Inc., 667 F.3d 273, 301 (3d Cir. 2011) (courts
have “a pragmatic response to certifications of common claims arising under varying state
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 24 of 28
18
laws”). Whether Pennsylvania or the laws of the eight Class Member States governs, the conduct
here would breach the laws of all such jurisdictions. See Ex 24 (attaching chart of breach of
contract elements for forum state Pennsylvania and each Class Member State).
Superiority: Rule 23(b)(3) also requires that a class action be “superior to other available
methods for fairly and efficiently adjudicating the controversy,” and that courts consider: (1)
class members’ interest in individually controlling separate actions, (2) the extent of any other
litigation by class members concerning the claims, (3) the desirability of concentrating the
litigation in the particular forum, and (4) the likely difficulties of managing a class action.
First, since the costs of litigating “negative value claims” would exceed the potential
recoveries, this factor strongly supports superiority. Baby Prods., 708 F.3d at 179. Absent
certification, class members will be likely left with no recourse. Although the court in CPF, 2023
WL 5746927, at *8, rejected superiority, it did not address the size of the individual claims at
issue or the Third Circuit’s standards for negative value claims, or have before it the additional
Declaratory Judgment claim Plaintiffs bring here. Second, Plaintiffs are unaware of any other
litigation by class members concerning the claims. Third, this Court has presided over this case
for over 2-1/2 years, is familiar with the claims and defenses, already in a detailed ruling granted
in part and denied in part Prestamos’ motion to dismiss (ECF Nos. 56-57) and granted CPLC’s
motions to dismiss (ECF Nos. 93, 134), presided over a number of discovery disputes and thus
remains a highly desirable forum. Finally, there are no disabling difficulties of managing this
case. To the contrary, Prestamos’ potential liability and class members’ rights and obligations
would be inefficient to litigate piecemeal and risk inconsistent adjudication even if class
members could separately sue.
V.
Plaintiffs’ Counsel Satisfy the Requirements of Rule 23(g)
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 25 of 28
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Fed. R. Civ. P. 23(g)(1) requires courts to appoint class counsel for a certified class and
consider: (1) “the work counsel has done in identifying or investigating potential claims in the
action”; (2) “counsel’s experience in handling class actions, other complex litigation, and the
types of claims asserted in the action”; (3) “counsel’s knowledge of the applicable law”; and (4)
“the resources that counsel will commit to representing the class[.]”
Plaintiffs’ Counsel meet these requirements. Plaintiffs’ Counsel are experienced litigating
in federal courts; have a deep understanding of the facts and issues; retained and worked with
three highly qualified proposed experts; deposed Prestamos’ two proposed experts including one
(Jorge Baez) who Prestamos only prejudicially identified at rebuttal which precluded Plaintiffs’
experts from even addressing the issues he raised in their rebuttals, along with the Castillo
declaration;2 and have demonstrated their steadfast commitment to go toe to toe with
experienced defense counsel throughout.
Conclusion
Absent class certification, the Plaintiff Classes will likely not only be deprived of any
chance to get any funding, but be left even worse off by having to repay loans they never
received as Prestamos has already sought from some of them. Because Plaintiffs meet the
requirements of Rules 23(a) and (b)(2) and (3), the Court should certify the two Classes.
2
Prestamos’ counsel served the August 9, 2024 Castillo declaration and the 22 page Baez
rebuttal the evening of the deadline, August 9, 2024. ECF No. 123 ¶ 1(b). Prior to that time,
Prestamos did not even identify Castillo as a potential declarant, or Baez as a proposed expert.
By contrast, all three of Plaintiffs’ experts were fairly identified and timely submitted opening
and rebuttal reports. Even at that, the bulk of Prestamos’ expert reports and the Castillo
declaration are either unsubstantiated assertion, impermissible legal conclusion or both. If
Prestamos fails to file its proposed expert reports and the Castillo declaration that will
corroborate the foregoing timing, Plaintiffs can if and as the Court may permit.
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 26 of 28
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Dated: September 6, 2024
Respectfully submitted,
Bailey & Glasser LLP
By: /s/ Lawrence J. Lederer
Lawrence J. Lederer (Pa. ID 50445)
Bart D. Cohen (Pa. ID 57606)
1622 Locust Street
Philadelphia, PA 19103
T.: 202.463-2101
F.: 202.463-2103
llederer@baileyglasser.com
bcohen@baileyglasser.com
Bailey & Glasser LLP
Michael L. Murphy (pro hac vice)
1055 Thomas Jefferson Street NW, Suite 540
Washington, DC 20007
T.: 202.463-2101
F.: 202.463-2103
mmurphy@baileyglasser.com
and
Nolan Heller Kauffman LLP
Justin A. Heller (pro hac vice)
Matthew M. Zapala (pro hac vice)
Gregory Zini (pro hac vice)
80 State Street, 11th Floor
Albany, NY 12207
T: (518) 449-3300
F: (518) 432-3123
jheller@nhkllp.com
mzapala@nhkllp.com
gzini@nhkllp.com
Attorneys for Plaintiffs and the Proposed Classes
Case 5:21-cv-04337-JMG Document 139 Filed 09/06/24 Page 27 of 28
CERTIFICATE OF SERVICE
I hereby certify that on the 6th day of September 2024, the foregoing was electronically
filed and served through the Court’s CM/ECF system to counsel of record.
/s/ Lawrence J. Lederer
Lawrence J. Lederer
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