Court filing
Class Action Complaint — Koziara v. Wells Fargo (M.D.N.C.)
Filed June 26, 2020 in Koziara v. Wells Fargo; one of 5 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of North Carolina |
|---|---|
| Filed | 2020-06-26 |
U.S. District Court for the Middle District of North Carolina · No. 1:20-cv-00588-UA-LPA · Doc. 1 · 2020-06-26 · Docket on CourtListener
Full text
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COMPLAINT AND DEMAND FOR JURY TRIAL
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO. ______________
T.C. KOZIARA, PLLC, FAHMIA, INC.,
individually and on behalf of all others
similarly situated,
Plaintiffs,
v.
WELLS FARGO & CO.; WELLS FARGO
BANK, N.A. and DOES 1 through 100,
inclusive,
Defendants.
COMPLAINT-CLASS ACTION
DEMAND FOR JURY TRIAL
Plaintiffs T.C. Koziara PLLC (“Koziara”) and Fahmia, Inc. (“Fahmia,” and with Koziara,
“Plaintiffs”) bring this Class Action Complaint and Demand for Jury Trial against Defendant Wells
Fargo & Co., Wells Fargo Bank N.A. (together, “Wells Fargo”), and Does 1 through 100, inclusive
(collectively with Wells Fargo, the “Defendants”), seeking compensation from Defendants, who
refuse to comply with the CARES Act that requires it to pay out of the compensation it received
for processing PPP loans, for services Plaintiffs and a large number of other agents rendered on
behalf of recipients of Small Business Administration (“SBA”) emergency loans. Plaintiffs allege
as follows upon personal knowledge as to themselves and their own acts and experiences, and, as
to all other matters, upon information and belief.
NATURE OF THE ACTION
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COMPLAINT AND DEMAND FOR JURY TRIAL
1.
In response to the shut-down of virtually every business across all non-essential
industries due to COVID-19, the federal government has raced over the past few months to ease
the impact of the shut-down on the U.S. economy. In order to keep afloat small businesses, and
to encourage those businesses to avoid massive worker layoffs and furloughs further damaging the
economy, Congress decided to create an economic relief program to distribute money to small
businesses.
2.
In order to distribute the money swiftly to small businesses, Congress decided to
utilize the nation’s financial institutions to take applications and distribute the funds that would be
fully guaranteed by the federal government. However, in order to avoid delay, Congress decided
that the financial institutions would not be required to verify the accuracy of the applications.
Instead, the burden to provide accurate information was put directly and solely on the small
businesses submitting applications.
3.
The applications would need to be simple and the amount of the economic relief
would be based on historical payroll information with specific limitations. However, as the lenders
would not be verifying the information, there would need to be a number of representations and
certifications, and specific warnings because that failure to provide true and accurate information
could subject the small business owner to five years in prison and a $250,000 fine.
4.
In order for these small businesses to be able to make timely, truthful and accurate
applications, Congress understood that small businesses would need assistance from the nation’s
professional accountants, tax preparers, financial advisors, attorneys, and other such agents
normally relied upon by small businesses.
5.
On March 27, 2020, Congress passed the SBA’s Paycheck Protection Program
(“PPP”) which initially authorized up to $349 billion in forgivable loans to small businesses to
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COMPLAINT AND DEMAND FOR JURY TRIAL
cover payroll and other expenses (PPP I). After the initial funds quickly dried up, Congress added
$310 billion additional dollars to the program (PPP II).
6.
The PPP was designed to be fast and straightforward, allowing business to apply
through SBA-approved lenders and await approval. Once approved, lenders would be
compensated in the form of a generous origination fee paid by the federal government, with the
requirement that the lender would be responsible for paying the fee owed to the loan applicant’s
agent (e.g., attorney or accountant). Both the lender and the agents were specifically forbidden
by the PPP from charging the small business borrower any amounts for the loan or the assistance
in preparing the application for the loan. The amount of the total compensation and the allocation
between the lender and the agents assisting the borrowers in preparing the application was
specifically set out in the PPP. For the majority of loans (those under $350,000), the lender would
receive an amount equal to 5% of the loan as compensation, and if the borrower used an agent
such as a CPA or accountant, the lender was to pay an amount equal to 1% of the loan amount to
the agent. In other words, compensation from the federal government to the lender and the
borrower’s agent was allocated as 80% to the lender and 20% to the CPA or attorney assisting the
small business borrower.
7.
Defendants are the fourth largest bank in the United States and headquartered in
San Francisco, California. They have more than 5,300 branches and serve in some way one in
three U.S. households. Among their many financial offerings, they specialize in small business
banking. According to the U.S. Small Business Administration, Wells Fargo secured approval of
nearly 171, 448 PPP applications totaling over $10 billion in borrowed funds.1 The average loan
1
See Small Business Administration Paycheck Protection Program Report (PPP)
approvals through 6/6/2, available at https://www.sba.gov/sites/default/files/2020-
06/PPP_Report_Public_200606%20FINAL_-508.pdf (last accessed June 20, 2020).
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COMPLAINT AND DEMAND FOR JURY TRIAL
size was $59,408. Assuming a conservative average fee of four percent, they have, accordingly,
been allocated over $400 million in origination fees, from which they were required to pay the
agents who assisted the borrowers in submitting applications.
8.
However, Defendants apparently decided that they do not need to complete the final
step of the process and based on information and belief have refused to pay the agents who assisted
PPP loan recipients with their applications. This practice seemed to be a deliberate scheme from
the beginning as even though they were required to pay agents that assisted in the application
process, Defendants did not set up a structure or ask any questions to determine whether borrowers
utilized an agent in completing applications. It appears that this scheme was to claim ignorance
of the existence of the agent as an excuse not to pay the agent its share of the compensation. This
refusal is harming accountants, attorneys, and other agents who dropped everything (in the midst
of tax season) to assist their customers in filling out these vital loan applications correctly and in
compliance with the PPP, and who were specifically only allowed to be paid for these services out
of the compensation paid to the lender. The Defendants’ failure to pay agents is in blatant violation
of PPP regulations stating that agent fees “will be paid by the lender out of the fees the lender
receives from SBA.”
9.
These agents, including Plaintiffs, have no other recourse for collecting fees for
assisting borrowers on PPP loan applications because the PPP regulations delegate the
responsibility for paying agents to the lenders alone. And yet, Defendants have disregarded the
regulations and refused to pay agents who assisted small businesses in receiving PPP funds.
10.
Plaintiffs have been harmed by Defendants’ practice. As CPA firms that both assist
small businesses in support functions, Plaintiffs both assisted small business clients who submitted
applications to Defendant that were then funded through the PPP program. Based on information
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and belief, Defendants have received the 5% compensation related to that loan, but have not paid
either of the Plaintiffs the 1% agent fee related to the loan.
11.
As a result of Defendants’ acts and omissions, Plaintiffs and a large number of
others like them have been deprived of payment for their critical work in supporting their clients’
PPP loan applications. As such, Plaintiffs bring this Class Action Complaint and Demand for Jury
Trial in order to vindicate their rights and those of agents everywhere who are similarly situated,
to force Defendants to account for their blatant violation of the PPP, and to pay agents their portion
of the compensation.
PARTIES
12.
Plaintiff T.C. Koziara, PLLC is a Certified Public Accountant (“CPA”) firm
organized in North Carolina, with its principal place of business located in Carrboro, North
Carolina.
13.
Plaintiff Fahmia, Inc. is a CPA firm incorporated in California, with its principal
place of business located in Torrance, California
14.
Defendant Wells Fargo & Company is a Delaware corporation headquartered in
San Francisco, California. Wells Fargo & Company is a financial services company with $1.9
trillion in assets. Its Consumer and Small Business Banking division is headquartered in Charlotte,
North Carolina. That division includes Branch Banking, Deposits, and Small Business, and
provides financial services to 21 million retail bank households and three million small business
owners through approximately 5,300 retail branches, 17 contact centers, and more than 13,000
ATMs in 36 states and the District of Columbia.
15.
Defendant Wells Fargo Bank, N.A., is a banking association chartered under the
laws of the United States of America and headquartered in Rapid City, South Dakota.
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16.
In this Complaint, references made to any act of any Defendant shall be deemed to
mean that officers, directors, agents, employees, or representatives of the Defendants named in
this lawsuit committed or authorized such acts, or failed and/or omitted to adequately supervise or
properly control or direct their employees while engaged in the management, direction, operation
or control of the affairs of the Defendants and did so while acting within the scope of their
employment or agency.
17.
Plaintiffs are unaware of the names, identities or capacities of the Defendants sued
as Doe Defendants 1 through 100, but is informed and believes and thereon alleges that such
fictitiously-named defendants are responsible in some manner for the damages and unfair business
practices and violation of rights as described herein. Plaintiffs will amend this Complaint to state
the true names, identities, or capacities of such fictitiously-named Defendants when ascertained.
JURISDICTION AND VENUE
18.
This Court has subject matter jurisdiction over this action under the Class Action
Fairness Act, 28 U.S.C. § 1332(d), because, as to the proposed Class and Subclasses, (a) at least
one member of the proposed Class, which consists of at least 100 members, is a citizen of a
different state than Defendants; (b) the claims of the proposed Class Members exceed $5,000,000
in the aggregate, exclusive of interest and costs, and (c) none of the exceptions under that
subsection apply to this action.
19.
Personal jurisdiction over Defendants is proper because Wells Fargo conducts
business in North Carolina and a significant number of events giving rise to the claims alleged
herein took place in this district, including Plaintiff Koziara providing services for PPP borrowers
for which Defendants have refused to pay agent fees as the PPP requires.
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20.
This Court has jurisdiction to grant declaratory relief under 28 U.S.C. § 2201
because an actual controversy exists between the parties as to their respective rights and
obligations under 85 Fed. Reg. 20816 § (4)(c) (hereinafter, the “PPP regulations”).
21.
Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) because
a substantial part of the events, acts or omissions giving rise to the claim occurred in this judicial
district, including work performed by Plaintiff Koziara on behalf of business clients within this
District.
FACTUAL BACKGROUND
22.
The spread of COVID-19 was declared a pandemic by the World Health
Organization (“WHO”) on March 11, 2020.
23.
On March 13, 2020, President Donald Trump issued the Coronavirus Disease 2019
(COVID-19) Emergency Declaration, which declared that the pandemic was of “sufficient severity
and magnitude to warrant an emergency declaration for all states, territories and the District of
Columbia.”
24.
The Federal Government expressly recognized that with the COVID-19
emergency, “many small businesses nationwide are experiencing economic hardship as a direct
result of the Federal, State and local public health measures that are being taken to minimize the
public’s exposure to the virus.”2
25.
The economic fallout from COVID-19, and the national response to it, was
immediate and enormous. As “stay at home” issues were ordered by states across the nation,
countless businesses were forced by law to overhaul their business models, scale back their
2
See Business Loan Program Temporary Changes; Paycheck Protection Program, 13
CFR Part 120, Interim Final Rule (“SBA PPP Final Rule”).
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business dramatically, or shutter–either temporarily or permanently. Business were further harmed
as the public began to avoid all public spaces. Furloughs and layoffs were rampant in the private
sector.
26.
On March 25, 2020, in response to the economic damage caused by the COVID-19
crisis and to overwhelming public pressure, the U.S. Senate passed the Coronavirus Aid, Relief,
and Economic Security Act, or the CARES Act. The CARES Act was passed by the House of
Representatives the following day and signed into law by President Trump on March 27, 2020.
Amounting to approximately $2 trillion, the CARES Act was the single-largest economic stimulus
bill in American history.
27.
Critically, the CARES Act created a $659 billion loan program for business with
fewer than five hundred employees, called the “Paycheck Protection Program” (“PPP”).3 The goal
of the PPP was to provide American small businesses with eight weeks of cash-flow assistance,
with a certain percentage forgivable if utilized to retain employees and fund payrolls. The loans
are fully federally guaranteed and administered by the Small Business Administration (“SBA”).4
28.
Basically, PPP loans operate more like grants if the recipient follows certain rules,
including that at least 75 percent of the loan goes toward payroll.5 Businesses that follow the rules
are permitted to submit a request to their SBA lender for total forgiveness. Otherwise, the loan
matures in two years and carries a one percent interest rate.6
3
The first phase of the PPP was for $349 billion, and when that quickly ran out, a second
phase was funded for $310 billion.
4
Small Bus. Admin., Docket No. SBA-2020-0015, 13 CFR Part 120, Paycheck Protection
Program 3245-AH34, Interim Final Rule, 85 Fed. Reg. 20814 § (2)(o) (Apr. 15, 2020).
5
85 Fed. Reg. 20812 § (2)(e); id. at 20813 § (2)(o).
6
Id. at 20813 § (2)(j).
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29.
The SBA was charged with creating the PPP implementing regulations. It issued
the first interim final rule (“Initial Rule”) on April 2, 2020, allowing businesses to begin applying
for PPP loans with all SBA lenders on April 3, 2020.
30.
An important piece of the PPP was that applications were to be processed and
funded on a “first-come, first-served” basis—that is, the SBA was to process applications and
distribute funds based on the order in which they were received. This made the SBA’s list of
approved lenders key gatekeepers in this process, which the lenders certainly understood. Because
the PPP was to be administered only through SBA-approved lenders, and because applicants were
applying for funds from the single pot allocated for the program, submitting an accurate application
for a loan through the SBA-approved lender as quickly as possible was critical.
31.
Congress added an incentive for the SBA-affiliated lenders, knowing they would
face a crush of PPP loan applications: for each loan processed and approved, the bank would
receive an origination fee of five percent for loans up to $350,000; three percent for loans between
$350,000 and $2 million; and one percent for loans between $2 million and $10 million.7
32.
With similar incentives in mind, Congress and the SBA also carved out a specific
benefit for the countless accountants, attorneys, and advisors who would need to lead or assist their
clients in preparing and filing PPP loan applications. These individuals and entities are referred
to as “agents” in the CARES Act and PPP implementing regulations.
33.
As explained in an Information Sheet provided for “lenders,” the SBA states that
‘[a]n ‘Agent’ is an authorized representative and can be: an attorney; an accountant; a consultant;
someone who prepares an applicant’s application for financial assistance and is employed and
compensated by the applicant; someone who assists a lender with originating, disbursing,
7
Id.
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servicing, liquidating, or litigating SBA loans; a loan broker; or any other individual or entity
representing an applicant by conducting business with the SBA.”8
34.
In addition, the SBA Regulations provide that “Agent fees will be paid out of lender
fees. The lender will pay the agent. Agents may not collect any fees from the applicant. The
total amount that an agent may collect from the lender for assistance in preparing an application
for a PPP” loan is as follows (“Agent Fees”): one percent (1%) for loans up to $350,000; 0.50%
for loans between $350,000 and $2 million; and 0.25% for loans between $2 million and $10
million.9
35.
Within this context, Congress and the SBA set up a straightforward system for the
disbursement of PPP loan funds where the applicant is assisted by an agent: (i) the agent prepares
the application and/or necessary supporting documents for the client’s application; (ii) the client
applies for the PPP loan through the lender; (iii) the lender submits the application to the SBA;
(iv) the SBA approves the loan and sends the client the money, through the lender, and eventually
pays the lender’s origination fee; and (v) the agent submits the request for fee payment to the
lender with the agent’s fee based upon (a) the work performed for the client and (b) the caps on
agent fees provided by the SBA’s PPP regulations.
36.
Unfortunately, based on information and belief, Defendants are refusing to pay the
fees of agents for their assistance in providing an accurate and truthful application for funding.
37.
Upon information and belief, this refusal is a company-wide policy. Further, the
fact that Defendants set up the application process without even asking the borrower if they utilized
8
U.S. Dep’t of Treasury, Paycheck Protection Program (PPP) Information Sheet Lenders,
https://home.treasury.gov/system/files/136PPP%20%Lender%20Information%20Fact%20Sheet.
pdf (last accessed May 25, 2020).
9
85 Fed. Reg. 20816 § (4)(c).
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the assistance of an agent, suggests that the Defendants did not want to have any record of the
agent information in their files.
38.
This policy of refusal to pay to agents “Agent Fees” that are due, and that only the
lenders are authorized to pay, stands as an immediate threat to these agents’ abilities to receive
payment. In the midst of an unprecedented economic/pandemic crisis, this policy represents short-
sighted profit-padding at best, and blatantly illegal conduct, at worst.
39.
Defendants professed to be committed to helping small businesses, among other
things, issuing a press release on April 16, 2020 declaring, “[w]e are doing everything we can to
help our small business customers navigate this difficult and uncertain time.”10 But, Wells Fargo
neglected to mention that it was taking steps to harm many small businesses.
40.
Refusing to pay Agent Fees is also inconsistent with agreements Defendants made
in order to become approved PPP lenders. Specifically, based on information and belief,
Defendants were required to fill out and sign the “CARES Act Section 1102 Lender Agreement”
for each loan.11 This submission requires each putative PPP lender to certify, under penalty of
perjury, that it (i) “is in compliance and will maintain compliance with all applicable requirements
of the [PPP], and PPP Loan Program Requirements[,]” (ii) will “service and liquidate all covered
loans made under the Paycheck Protection Program in accordance with PPP Loan Requirements[,]
and (iii) will “close and disburse each covered loan in accordance with the terms and conditions
of the PPP Authorization and PPP Loan Requirements.”
10
See Statement from Wells Fargo on the Paycheck Protection Program available at
https://newsroom.wf.com/press-release/corporate-and-financial/statement-wells-fargo-paycheck-
protection-program. (Last accessed June 19, 2020).
11
U.S. Small Bus. Admin., CARES Act Section 1102 Lender Agreement,
https://www.sba.gov/sites/default/files/2020-04/PP--Agreement-for-New-Lenders-Banks-Credit-
Unions-FCS-w-seal-fillable.pdf (last accessed May 25, 2020).
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41.
To the extent Defendants had to certify, at any point, that they would follow the
PPP’s regulations in making PPP loans, they were not being truthful. Defendants’ policy to refuse
to pay Agent Fees directly violates the PPP’s implementing regulations.
42.
It is pursuant to these representations that Defendants were able to process 171, 448
PPP applications worth over $10 billion. Assuming a conservative average fee of four percent,
Defendants have, accordingly, been allocated over $400 million in origination fees, from which
they were required to pay agents.
43.
Knowing that they were required to pay agents a percentage of PPP loan origination
fees if an agent assisted an applicant in preparing and submitting the application, Defendants
elected not to ask borrowers whether they utilized an “agent” to assist them in the application
process and have not paid Plaintiffs or similarly situated agents compensation from funded PPP
loans.
PLAINTIFFS’ EXPERIENCE
44.
Koziara is a North Carolina CPA firm providing financial services to clients in the
southeastern part of the United States. Fahmia is a California CPA firm which has provided
financial services to clients in the Southern California Area for over 30 years, including
bookkeeping, taxation, payroll services, financial planning and consulting for small businesses and
individuals.
45.
In March, Plaintiffs both became aware that the CARES Act had been signed into
law. Plaintiffs, knowing that the COVID-19 crisis would significantly impact their respective
clients’ businesses, sought to obtain PPP loans through various SBA-approved lenders on behalf
of clients.
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46.
Plaintiffs and their respective employees spent considerable time familiarizing
themselves with the Act and the related SBA Regulations, in particular, (a) Section 1102, which
permits the SBA to guarantee 100% of Section 7(a) loans under the PPP and (b) Section 1106 of
the Act, which provides forgiveness of up to the full principal amount of qualifying loans
guaranteed under the PPP.
47.
In or about March, April, and May, 2020, Plaintiffs each assisted their clients in the
gathering and analysis of their documents, as well as calculating and preparing their loan
applications.
48.
Based on the SBA Regulations, Plaintiffs understood that they were not allowed to
charge clients a fee relating to the application process. The agents were only allowed to receive
compensation from the agents’ share of the estimated $20 billion in fees that the Federal
Government paid the Lenders for originating the PPP loans.
49.
Plaintiffs had the primary role in calculating the payroll information needed for the
application, and providing their respective clients’ accounting information, advice, documentation
in support of their PPP loan applications. Plaintiffs also will have ongoing responsibility for
advising their respective clients on the forgiveness of the PPP loans as well.
50.
Koziara provided all these services to clients who obtained a PPP loan from Wells
Fargo in the amount of $10,326. Based on information and belief, Wells Fargo was paid or will
be paid, an origination fee of $516.30, of which Koziara is entitled to $103 (1% of total loan
amount) for its work as the agent of the borrower in submitting the application and documentation.
51.
Fahmia provided similar services to at least six clients who obtained PPP loans
from Wells Fargo in an amount totaling $498,671. Based on information and belief, for these
loans, Wells Fargo was paid or will be paid origination fees totaling $24,933, of which Fahmia is
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entitled to $4,986 (1% of total loan amounts) of those fees for its work as the agent of these
borrowers in submitting the application and documentation.
52.
Defendants did not comply with the SBA Regulations because they have not paid
either Plaintiff the agent fees to which they are entitled despite awarding PPP loans to Plaintiffs’
clients for whom Plaintiffs acted as a PPP agent. Instead, Defendants retained all of the Agent
Fees for themselves.
53.
As a result of Defendants’ unlawful and unfair actions, Plaintiffs and the Class have
suffered financial harm by being deprived of the statutorily mandated compensation for the
professional services provided to clients in assisting them with obtaining PPP loans.
CLASS ALLEGATIONS
54.
Plaintiffs bring this action on behalf of themselves and all others similarly situated
as a nationwide Class, defined as follows:
All persons and businesses who served as an agent in relation to, and
provided assistance to a client in relation to, the preparation and/or
submission of a client’s PPP loan application to Wells Fargo which
resulted in a loan being funded under the PPP. Plaintiff further
brings this action on behalf of a subclass of individuals defined as
follows:
California Subclass. All persons and businesses in California who
served as an agent in relation to, and provided assistance to a client
in relation to, the preparation and/or submission of a client’s PPP
loan application to Wells Fargo which resulted in a loan being
funded under the PPP.
North Carolina Subclass. All persons and businesses in North
Carolina who served as an agent in relation to, and provided
assistance to a client in relation to, the preparation and/or
submission of a client’s PPP loan application to Wells Fargo which
resulted in a loan being funded under the PPP.
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55.
Excluded from this Class and Subclass (hereinafter “the Class” unless otherwise
indicated) are: (1) any Judge or Magistrate presiding over this action and members of their
families; (2) Defendants, Defendants’ subsidiaries, parents, successors, predecessors, and any
entity in which Defendants or its parents have a controlling interest and its current or former
employees, officers and directors; (3) persons who properly execute and file a timely request for
exclusion from the Class; (4) persons whose claims in this matter have been finally adjudicated on
the merits of otherwise released; (5) Plaintiffs’ counsel and Defendants’ counsel; and (6) the legal
representatives, successors, and assigns of any such excluded persons.
56.
Plaintiffs reserve the right to expand, limit, modify, or amend this Class definition,
including the addition of one or more subclasses, in connection with Plaintiffs’ motion for class
certification, or any other time, based upon new facts obtained during discovery.
57.
Numerosity: The Class is composed of hundreds of Agents (“Class Members”)
whose joinder in this action would be impracticable. The disposition of their claims through this
class action will benefit all Class Members, the parties, and the courts.
58.
Commonality and Predominance: There is a commonality in questions of law and
fact affecting the Class. These questions of law and fact predominate over individual questions
affecting individual Class Members, including, but not limited to, the following:
a. Whether Defendants’ conduct violates the CARES Act and/or its implementing
regulations;
b. Whether Defendants are required to compensate Plaintiffs out of the origination
fees obtained from SBA through the PPP;
c. Whether Plaintiffs are entitled to compensation by Defendants for their work
assisting their respective clients’ PPP loan application;
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d. Whether Defendants’ conduct was willful and knowing;
e. Whether Defendants’ submission of completed Form 2484 constituted an
agreement;
f. Whether Defendants breached that agreement;
g. Whether Defendants’ conduct was pursuant to a company-wide policy or policies;
and
h. Whether Defendants’ conduct constitutes unjust enrichment.
59.
Superiority: This case is also appropriate for class certification because class
proceedings are superior to all other available methods for the fair and efficient adjudication of
this controversy given that joinder of all parties is impracticable. The damages suffered by the
individual members of the Class will likely be relatively small, especially given the burden and
expense of individual prosecution of the complex litigation necessitated by Defendants’ actions.
Thus, it would be difficult and not economical for the individual members of the Class to obtain
effective relief from Defendants’ misconduct. Even if members of the Class could sustain such
individual litigation, it would still not be preferable to a class action, because individual litigation
would increase the delay and expense to all parties due to the complex legal and factual
controversies presented in this Complaint. By contrast, a class action presents far fewer
management difficulties and provides the benefits of single adjudication, economy of scale, and
comprehensive supervision by a single court. Economies of time, effort and expense will be
fostered and uniformity of decisions ensured.
60.
Typicality: Plaintiffs’ claims are typical of, and are not antagonistic to, the claims
of all Class Members, in that Plaintiffs and members of the Class sustained damages arising out
of Defendants’ uniform wrongful conduct.
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61.
Adequacy: Plaintiffs will fairly and adequately represent and protect the interests
of the Class and has retained counsel with substantial experience in litigating complex cases,
including consumer fraud and class actions. Plaintiffs’ claims are representative of the claims of
the other members of the Class. That is, Plaintiffs and members of the Class sustained damages
as a result of Defendants’ uniform conduct. Plaintiffs also have no interests antagonistic to those
of the Class, and Defendants have no defenses unique to either Plaintiff. Both Plaintiffs and their
counsel will vigorously prosecute this action on behalf of the Class and have the financial ability
to do so. Neither Plaintiffs nor their counsel have any interest adverse to other Class Members.
62.
Ascertainability: Plaintiffs are informed and believe that Defendants keep
extensive computerized records of their loan applications through, inter alia, computerized loan
application systems and federally-mandated record-keeping practices. Defendants have one or
more databases through which all of the borrowers may be identified and ascertained, and it
maintains contact information, including electronic mail and mailing address. From this
information, the existence of the Class Members (i.e., borrowers’ Agents) can be determined, and
thereafter, a notice of this action can be disseminated in accordance with due process requirements.
63.
Defendants have acted, and refused to act, on grounds generally applicable to the
Class, thereby making appropriate final equitable relief with respect to the Class as a whole.
CAUSES OF ACTION
COUNT I – DECLARATORY RELIEF
64.
Plaintiffs incorporate by reference each preceding and succeeding paragraph as
though fully set forth at length herein.
65.
Plaintiffs and the Class represent individuals who are “agents” as defined by the
SBA regulations for the PPP.
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66.
Plaintiffs and the putative Class have assisted clients with the process of preparing
applications, and applying for, PPP loan funds. Defendants, despite the clear command of the
SBA’s PPP regulations, have refused to make these payments. An actual controversy has arisen
between Plaintiffs and the Class, on one hand, and Defendants on the other, wherein Defendants
deny by their refusal to pay that they are obligated to pay Plaintiffs’ and the Class’s “agent” fees
pursuant to PPP regulations.
67.
Plaintiffs and the Class seek a declaration, in accordance with SBA regulations and
pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that Defendants are obligated to set
aside money to pay, and pay third-party agents –within the SBA-approved limits—for the work
performed on behalf of a client in relation to the preparation and/or submission of a PPP loan
application that resulted in a funded PPP loan.
COUNT II – BREACH OF CONTRACT, THIRD PARTY BENEFICIARY
68.
Plaintiffs incorporate by reference each preceding and succeeding paragraph as
though fully set forth at length herein.
69.
Based on information and belief, Defendants entered into an agreement with the
SBA in connection with the loans funded in the PPP.
70.
The agreements required that Defendants would adhere to all PPP rules and
regulations and incorporate these requirements by reference. Defendants and the SBA understood
that agents involved in the preparation and submission of PPP loan applications would need to be
compensated.
71.
The SBA’s PPP regulations specifically require that PPP lenders pay the fees of
any “agent” that assists with the PPP loan application process, within limits.
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72.
Defendants understood that Plaintiffs and the Class were intended beneficiaries in
this agreement. Nevertheless, Defendants have refused to live up to their end of the bargain, and
have uniformly refused to pay agent fees to Plaintiffs and the Class.
73.
By refusing to pay agent fees in accordance with SBA regulations, Defendants are
violating the terms of their agreement, thereby damaging Plaintiffs and the Class. Plaintiffs and
the class thus ask this Court to award them damages sufficient to make them whole, and
compensate them for work they did in preparing clients’ PPP loan application for loans that were
funded, consequential damages, and all other damages available at law.
COUNT III - VIOLATIONS OF THE NORTH CAROLINA UNFAIR AND DECEPTIVE
TRADE PRACTICES ACT
(N.C .Gen. Stat § 75-1.1, et seq.)
74.
Plaintiffs incorporate by reference each preceding and succeeding paragraph as
though fully set forth at length herein.
75.
Plaintiffs and the North Carolina Class members are persons under the North
Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, et seq.
(“NCUDTPA”).
76.
Defendants’ conduct as set forth herein was performed in the course of Defendants’
trade or business and thus occurred in or affected “commerce,” as defined in North Carolina
General Statutes § 75-1.1(b). All the wrongful conduct alleged herein occurred, and continues to
occur, in the course of Defendants’ business.
77.
The NCUDTPA makes unlawful “[u]nfair methods of competition in or affecting
commerce, and unfair or deceptive acts or practices in or affecting commerce[.]” The NCUDTPA
provides a private right of action for any person injured “by reason of any act or thing done by any
other person, firm or corporation in violation of” the NCUDTPA. N.C. Gen. Stat. § 75-16.
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COMPLAINT AND DEMAND FOR JURY TRIAL
78.
Defendants held themselves out as offering PPP loans under the CARES Act and
SBA Regulations. Plaintiffs and members of the Class reasonably expected and reasonably relied
on Defendants operating within the law governing the loans requiring payment of the PPP Agent
Fees. Defendants, in fact, failed to comply with the CARES Act and SBA Regulations.
79.
Defendants engaged in lending to businesses under the CARES Act and PPP
program and thus were required to abide by obligations set forth in the SBA Regulations.
80.
The SBA’s PPP regulations specifically declare that “lenders” who provide loans
under the program will be responsible for paying “agent” fees, within prescribed limits.
81.
Defendants’ conduct, as set forth herein, constitutes unfair or deceptive acts or
practices that violated the NCUDTPA, including, but not limited to, (1) failing to adhere to the
PPP’s rules and regulations in withholding payment from agents who assisted in the preparation
of PPP loans and (2) failing to disclose material information that was known to Defendants since
becoming an approved PPP lender concerning the PPP loan process and Defendants’ requirement
to pay agents who assisted borrowers in obtaining PPP loans. Defendants are directly liable for
these violations of law.
82.
Defendants’ acts and practices proximately caused actual injury to Plaintiffs and
the other Class members, as Plaintiffs have not been paid, as legally required by the PPP. Plaintiffs
and the Class members suffered ascertainable loss as a result of Defendants’ conduct.
83.
Based on Defendants’ willful violation of the NCUDTPA, Defendants are liable to
Plaintiffs and the Class for damages in amounts to be proven at trial, including attorneys’ fees,
costs, and treble damages. N.C. Gen. Stat. § 75-16.
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COMPLAINT AND DEMAND FOR JURY TRIAL
COUNT III - VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION
LAW
(Cal. Bus. & Prof. Code § 17200, et seq.)
84.
Plaintiff Fahmia incorporates by reference each preceding and succeeding
paragraph as though fully set forth at length herein.
85.
Pursuant to California Business & Professions Code § 17200, “any unlawful,
unfair…business act or practice” is prohibited in the State of California. This statute creates a
private right of action based on any unlawful or unfair act committed in the course of business,
particularly where it provides the unlawful actor with an unfair business advantage. Local, state
and/or federal law can serve as the basis for an “unlawful…business act or practice[.]”
86.
The SBA’s PPP regulations specifically provide that “lenders” who provide loans
under the program will be responsible for paying “agent” fees, within prescribed limits.
87.
Defendants have uniformly refused to pay these fees to Plaintiff and the Class. As
a result, Defendants have engaged in unlawful conduct that has cost Plaintiff and the Class millions
of dollars in fees, collectively.
88.
Defendants have also engaged in “unfair” business practice through this conduct,
as well as set forth above.
89.
As a direct and proximate result of the foregoing acts and practices, Defendants
have received, or will receive, income, profits, and other benefits, which they would not have
received if they had not engaged in the violations of Section 17200 described in this Complaint.
90.
Because Plaintiff and the Class have been harmed by Defendants’ unreasonable,
unlawful, and unfair business practice of refusing to pay agents who assist in the preparation and
submission of PPP loan application materials, Plaintiff asks that it be held liable for restitution, be
enjoined from further refusing to pay such agent fees, and that Plaintiff be awarded all other such
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COMPLAINT AND DEMAND FOR JURY TRIAL
relief available by law. Plaintiff, pursuant to California Business & Professions Code § 17203,
seeks an order of this court compelling Defendants to provide restitution and injunctive relief
calling for Defendants, and each of them, to cease unlawful and unfair business practices in the
future.
COUNT IV – UNJUST ENRICHMENT
91.
Plaintiffs incorporate by reference each preceding and succeeding paragraph as
though fully set forth at length herein.
92.
Unjust enrichment, or restitution, may be alleged where a Defendant unjustly
obtains and retains a benefit to Plaintiffs’ detriment, where such retention violates fundamental
principles of equity, justice, and good conscience.
93.
Here, Defendants have obtained millions of dollars in benefits in the form of PPP
loan origination fees. A portion of those fees were to be paid to agents, like and including Plaintiff,
who assisted in their clients’ PPP loan applications. But Defendants are refusing to pay those fees,
in contravention of PPP regulations.
94.
Principles of justice, equity, and good conscience demand that Defendants not be
allowed to retain these agent fees. Defendants have fallen short in their duties as lenders, and
during a crisis no less. As a result, Plaintiff and the putative Class have been unable to obtain the
agent fees due to them.
95.
Accordingly, Defendants must disgorge the portion of any and all PPP origination
fees that they have retained to the extent they are due to Plaintiff and the putative Class in their
capacities as agents.
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COMPLAINT AND DEMAND FOR JURY TRIAL
COUNT V – CONVERSION
96.
Plaintiffs incorporate by reference each preceding and succeeding paragraph as
though fully set forth at length herein.
97.
Under the SBA regulations, each Plaintiff and the Class, as PPP agents, have a right
to agent fees that must be paid from the amount of lender fees provided to Defendants for
processing the funded PPP loan applications submitted by the clients of Plaintiffs and the Class.
98.
The SBA regulations state that “[a]gent fees will be paid out of lender fees” and
provide guidelines on the amount of agent fees that should be paid to the PPP agent, based upon
the size of the PPP loan.
99.
Additionally, the SBA regulations require that lenders, not loan recipients, pay the
agent fees. The SBA regulations unequivocally state that “[a]gents may not collect fees from the
applicant.”
100.
Plaintiffs and the Class assisted clients with applying for PPP loans, including
gathering and curating information necessary for completing PPP loan applications that were
subsequently funded. Due to the efforts of Plaintiffs and the Class, their clients were awarded PPP
loans, through applications made with Defendants. As such, Plaintiffs have a right to immediate
possession of the agent fees.
101.
Although Plaintiffs are each entitled to agent fees under the SBA regulations,
Defendants have refused to provide those fees to Plaintiffs and the Class, thus keeping the agent
fees that were paid to it for purposes of being passed on to the agents. By withholding these fees,
Defendants have maintained wrongful control over Plaintiffs’ property inconsistent with Plaintiffs’
entitlements under the SBA regulations.
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COMPLAINT AND DEMAND FOR JURY TRIAL
102.
Defendants committed civil conversion by retaining monies owed to Plaintiffs and
Class members.
103.
Plaintiffs and the Class have been injured as a direct and proximate cause of
Defendants’ misconduct. Plaintiffs, as such, seek recovery from Defendants in the amount of the
owed agent fees, and all other relief afforded under the law.
DEMAND FOR JURY TRIAL
104.
Plaintiffs each demand a trial by jury on all issues pursuant to Rule 38(b) of the
Federal Rules of Civil Procedure, and to the fullest extent permitted under applicable law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs T.C. Koziara, PLLC and Fahmia, Inc., individually and on behalf
of the Class, respectfully pray for the following relief:
(a) An order certifying the Class as defined above, appointing Plaintiffs as the
representative of the Class, and appointing its counsel as Class Counsel;
(b) An order declaring that Defendants’ actions, as set out above, constitute
unjust enrichment, conversion, breach of contract on behalf of third-party
beneficiary, violate N.C.Gen.Stat § 75-1.1, et seq.; Cal. Bus. & Prof. Code § 17200,
et seq.; and violate the SBA’s PPP regulations;
(c) An award of all economic, monetary, actual, consequential, compensatory,
and punitive damages available under the law and caused by Defendants’ conduct,
including without limitation, actual damages for past, present and future expenses
caused by Defendants’ misconduct, lost time and interest, and all other damages
suffered, including any damages likely to be incurred by Plaintiffs and the Class;
(d) An award of reasonable litigation expenses and attorneys’ fees;
Case 1:20-cv-00588-UA-LPA Document 1 Filed 06/26/20 Page 24 of 25
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COMPLAINT AND DEMAND FOR JURY TRIAL
(e) An award of pre- and post-judgment interest, to the extent allowable;
(f) The entry of an injunction and/or declaratory relief as necessary to protect the
interests of the Plaintiffs and the Class; and
(g) Such other further relief that the Court deems reasonable and just.
This the 26th of June 2020.
By:
/s/ Daniel C. Lyon
Daniel C. Lyon (43828)
ELLIOT MORGAN PARSONAGE, PLLC
300 E. Kingston Avenue
Suite 200
Charlotte, NC 28203
Telephone: (704)707-3705
Facsimile: (336)724-3335
Email: dlyon@emplawfirm.com
Richard D. McCune*
Elaine S. Kusel*
Michele M. Vercoski*
MCCUNE WRIGHT AREVALO LLP
18565 Jamboree Road, Suite 550
Irvine, California 92612
Telephone: (909) 557-1250
Facsimile: (909) 557-1275
Email:
rdm@mccunewright.com
esk@mccunewright.com
mmv@mccunewright.com
Derek Y. Brandt*
Leigh M. Perica*
Connor P. Lemire*
MCCUNE WRIGHT AREVALO LLP
231 North Main Street, Suite 20
Edwardsville, IL 62025
T: (618) 307-6116
dyb@mccunewright.com
lmp@mccunewright.com
cpl@mccunewright.com
Attorneys for Plaintiffs and Putative Class
*Pro Hac Vice to be filed
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