Order Denying Transfer — In re PPP Agent Fees Litigation (MDL 2950)

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UNITED STATES JUDICIAL PANEL 
on 
MULTIDISTRICT LITIGATION
IN RE: PAYCHECK PROTECTION PROGRAM (PPP)
MDL No. 2950
AGENT FEES LITIGATION
ORDER DENYING TRANSFER
Before the Panel:* Plaintiff in one action in the Northern District of Georgia moves under
28 U.S.C. § 1407 to centralize this litigation in the District of Arizona. The litigation consists of
12 actions pending in 10 districts, as listed on Schedule A.  Since the filing of the motion, the Panel
has been notified of 50 related  actions pending in an additional 16 districts.  The actions allege that
lenders across the banking industry failed to pay legally mandated “agent fees” owed to agents who
assisted small businesses in applying for loans that were approved under the Paycheck Protection
Program (“PPP”), a federal loan program established under the Coronavirus Aid, Relief, and
Economic Security Act (“CARES Act”) to help small businesses suffering economic damage from
COVID-19 related shutdowns.  
The defendants in the actions on the motion and related actions are over a hundred lenders
authorized to make PPP loans, including numerous community and regional banks and nationwide
banks such as Chase, Bank of America, and Wells Fargo.1  All responding defendants except Chase
and Wells Fargo oppose centralization.2  Most of the opposing defendants request that, if
*
Judge Ellen Segal Huvelle and Judge David C. Norton took no part in the decision
of this matter.
1
“Chase” refers to JPMorgan Chase Bank N.A., and JPMorgan Chase & Co.; “Wells
Fargo” refers to Wells Fargo Bank, N.A., and Wells Fargo & Co.; and “Bank of America” refers to
Bank of America, N.A. and Bank of America Corporation.
2
Defendants opposing centralization are: Bank of America; Synovus Bank; Ameris
Bank; Celtic Bank Corp.; MUFG Union Bank N.A., and MUFG Americas Holding Co.; City
National Bank; Fifth Third Bank National Association and Fifth Third Bankcorp; First National
Bank of Pennsylvania and F.N.B. Corp.; Harvest Small Business Finance, LLC; Huntington
Bancshares Incorporated and The Huntington National Bank; KeyCorp and KeyBank N.A.; Live Oak
Banking Company; MidFirst Bank; The North Side Bank & Trust Company; PNC Financial Services
Group, Inc., and PNC Bank N.A. (together, “PNC”); ServisFirst Bank; Truist Bank and Truist
Financial Corporation (together, “Truist”); U.S. Bancorp and U.S. Bank National Association
(together, “U.S. Bank”); Signature Bank and Signature Financial LLC; Cross River Bank; Square
Capital, LLC; Citibank, N.A. and Citigroup Inc.; Wintrust Bank, N.A.; CME Federal Credit Union;
First Financial Bancorp.; First Financial Bank; Telhio Credit Union; First Hawaiian Bank; Bank of
(continued...)
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centralization is ordered over their objections, any MDL should be lender-specific and established
only for the largest or most frequently sued lenders.  Chase opposes industry-wide centralization, but
supports a Chase-specific MDL in which claims against other lenders in multi-defendant actions are
separated and remanded to their original forums.  Wells Fargo supports industry-wide centralization
and is opposed to lender-specific MDLs.  Nearly all defendants propose that, in the event of industry-
wide centralization, the Northern District of Georgia should be the transferee district and, in the
event of lender-specific MDLs, they variously propose the Southern District of Florida, Northern
District of Georgia, District of Maryland, Southern District of Ohio, and Western District of
Pennsylvania.
On the plaintiffs’ side, all responding plaintiffs but one (Smukler) support centralization of
all actions in a single industry-wide MDL, with disagreement limited to the transferee district.  Most
also oppose lender-specific MDLs, which they assert would defeat the anticipated efficiencies from
centralization.  But one counsel representing plaintiffs in 21 related actions requests that, if an
industry-wide MDL is rejected, lender-specific MDLs should be established for the 15 largest
PPP lenders and national banks sued in three or more actions.  Plaintiff opposing industry-wide
centralization (Smukler) supports a lender-specific MDL for claims against Chase.  The transferee
districts proposed by the various plaintiffs are the District of Arizona, Northern District of
California, Southern District of Florida, Northern District of Illinois, Southern District of New York,
Southern District of Ohio, District of South Carolina, and Western District of Washington.
On the basis of the papers filed and the hearing session held,3 we conclude that centralization
will not serve the convenience of the parties and witnesses or further the just and efficient conduct
of the litigation.  The actions undoubtedly allege similar policies and practices by the defendant
banks – specifically, that defendants  failed to pay fees to agents who assisted small businesses in
applying for and obtaining PPP loans, contrary to the provisions of the CARES Act and federal
regulations.  But the actions involve dozens of different lenders, and there is no common or
predominant defendant across all actions.   Common factual questions are lacking, as the policies
and practices for paying agent fees are unique to each lender which differ significantly across the
2(...continued)
Hawaii; Central Pacific Bank; American Savings Bank, F.S.B. (sued as Hawaiian Electric, Inc.);
Kabbage, Inc.; Cadence Bancorporation; Cadence Bank, N.A.; ServisFirst Bank; Newton Federal
Bank; Honat Bancorp; Honesdale National Bank; Peoples Financial Services Corp.; Peoples Security
Bank & Trust Co.; Academy Bank, N.A.; BOKF, NA and BOK Financial Corporation; Regions
Bank and Regions Financial Corporation; Bank OZK; Interamerican Bank F.S.B.; BankUnited, N.A.;
Interstate Bank; Frost Bank; Amerant Bank, N.A.; Bank of South Texas; CenterState Bank
Corporation; and CenterState Bank, N.A.
3
In light of the concerns about the spread of COVID-19 virus (coronavirus), the Panel
heard oral argument by videoconference at its hearing session of July 30, 2020.  See Suppl. Notice
of Hearing Session, MDL No. 2950 (J.P.M.L. July 14, 2020), ECF No. 287.
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actions.4  Moreover, the vast majority of defendants are named in only one action, further indicating
a lack of common questions of fact. 
The proponents of centralization argue that an industry-wide MDL still is warranted by the
central common legal issue in these actions – whether agents have a legal entitlement to agent fees
under the CARES Act or implementing regulations.5  But “[c]ommon legal questions are insufficient
to satisfy Section 1407’s requirement of common factual questions.”  See In re Hotel Indus. Sex
Trafficking Litig., 433 F. Supp.3d 1353, 1356 (J.P.M.L. 2020).6
The Panel also has determined that lender-specific MDLs are not warranted.  Although some
common factual questions likely exist on a lender-specific basis, the creation of lender-specific
MDLs would create significant inefficiencies.  Many actions are multi-lender actions, and the
creation of the proposed numerous lender-specific MDLs would require extensive separation and
remand of claims to ensure that (1) the claims against the various lenders are transferred to the
correct MDL, and (2) the claims against unrelated lenders are simultaneously separated and
remanded to their transferor courts.  This would have the effect of significantly multiplying the
4
For example, the Northern District of Alabama Leigh King Norton & Underwood
action is brought against Regions Bank; the Western District of Pennsylvania HallockShannon action
names as defendants Citizens & Northern Corp., Citizens & Northern Bank, FNCB Bancorp, Inc.,
First National Community Bank, F.N.B. Corp., First National Bank of Pennsylvania, Honat Bancorp,
Honesdale National Bank, Peoples Financial Services Corp., and Peoples Security Bank & Trust
Company; and the Northern District of Georgia Alliant action names Bank of America, Ameris
Bank, Bank OZK, Cadence Bank, N.A., Centerstate Bank, Newton Federal Bank, Synovus Bank,
Truist Bank, and Wells Fargo.  There is no overlap among the defendants in those three actions,
indicating an absence of common factual issues and no overlapping discovery.
5
See, e.g., Movant’s Reply Br., ECF No. 223, at 10 (“The real question at the heart of
this litigation is whether the CARES Act mandates that agents who assisted borrowers in applying
for PPP loans are paid their agent fees out of the lender fees – the answer to this question drives all
liability in the Related Actions.”); Def. Wells Fargo Br., ECF No. 170, at 4 (“Plaintiffs’ claims . . are
based on the simple (and incorrect) assertion that they are entitled to fees for their work under the
statute and regulation alone.”) (emphasis in original).
6
See also, e.g., In re ABA Law School Accreditation Litig., 325 F. Supp. 3d 1377, 1378
(J.P.M.L. 2018) (denying centralization of three actions bringing nearly identical legal challenges
to certain ABA standards governing law school accreditation); In re SFPP, LP., R.R. Prop. Rights
Litig., 121 F. Supp. 3d 1360, 1361 (J.P.M.L. 2015) (denying centralization where the “key issue” in
the litigation was “legal in nature,” observing that “[s]eeking a uniform legal determination . . .
generally is not a sufficient basis for centralization.”).
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number of judges presiding over the claims in a single action.7  This degree of separation and remand
likely would diminish, rather than enhance, efficiencies.
Alternatives to centralization are available to minimize duplicative pretrial proceedings. 
Where multiple actions are pending in a single district, the parties can seek to organize the actions
before a single judge, as already has occurred in the Southern District of New York, the District of
South Carolina, and the Southern District of Florida.  Informal coordination also appears to be
practicable across districts, as just four groups of plaintiffs’ counsel represent plaintiffs in 50 of the
62 actions in this litigation and the most frequently-named defendants appear to be represented by
national counsel.   Additionally, all actions are in their infancy, which will further facilitate
coordinated pretrial proceedings.
IT IS THEREFORE ORDERED that the motion for centralization of the actions listed on
Schedule A is denied.
      PANEL ON MULTIDISTRICT LITIGATION
                                                                                          
        Karen K. Caldwell
                Chair
R. David Proctor
Catherine D. Perry
Nathaniel M. Gorton 
Matthew F. Kennelly
7
As noted above, Chase supports a Chase-only MDL.  Additionally, Bank of America,
Truist Bank, PNC, and U.S. Bank each propose their own respective lender-specific MDLs in the
event the actions are centralized over their objections.  About 60 other defendants that oppose
centralization alternatively propose lender-specific MDLs.  And plaintiffs have proposed lender-
specific MDLs for the 15 largest PPP lenders and national banks sued in three or more actions.
Case MDL No. 2950   Document 356   Filed 08/05/20   Page 4 of 6

IN RE: PAYCHECK PROTECTION PROGRAM (PPP)
MDL No. 2950
AGENT FEES LITIGATION 
SCHEDULE A
Northern District of Alabama
LEIGH KING NORTON & UNDERWOOD LLC v. REGIONS FINANCIAL
CORPORATION, ET AL., C.A. No. 2:20-00591
District of Arizona
PANDA ACCOUNTING LLC v. ACADEMY BANK NA, ET AL., 
C.A. No. 2:20-00985
Central District of California
AMERICAN VIDEO DUPLICATING, INC., ET AL. v. CITIGROUP INC., ET AL.,
C.A. No. 2:20-03815
AMERICAN VIDEO DUPLICATING, INC. v. ROYAL BANK OF CANADA, ET AL.,
C.A. No. 2:20-04036
BRUNNER ACCOUNTING GROUP v. SVB FINANCIAL GROUP, ET AL.,
C.A. No. 2:20-04235
District of Colorado
IMPACCT, LLC v. JPMORGAN CHASE & CO., ET AL., C.A. No. 1:20-01344
Northern District of Florida
SPORT & WHEAT CPA PA v. SERVISFIRST BANK, INC., ET AL., C.A. No. 3:20-05425
Northern District of Georgia
ALLIANT CPA GROUP, LLC v. BANK OF AMERICA CORP., ET AL.,
C.A. No. 1:20-02026
Northern District of Illinois
A.D. SIMS, LLC v. WINTRUST FINANCIAL CORPORATION, ET AL., 
C.A. No. 1:20-02644
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A-2
Southern District of Ohio
DAVID S. LOWRY, CPA, LTD v. U.S. BANCORP, ET AL., C.A. No. 1:20-00348
Western District of Pennsylvania
HALLOCKSHANNON, PC v. CITIZENS & NORTHERN CORP., ET AL.,
C.A. No. 2:20-00714
District of Utah
PANDA GROUP PC v. BANK OF AMERICA CORP., ET AL., C.A. No. 4:20-00045
Case MDL No. 2950   Document 356   Filed 08/05/20   Page 6 of 6

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