Page 1 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF FLORIDA 

ANGELA WILLIAMS, individually and on 

behalf of similarly situated businesses 

and individuals,

 Plaintiff,

v.

BANK OF AMERICA, N.A., 

 Defendant.

 

 Case No. 

 CLASS ACTION 

 

 JURY TRIAL DEMANDED 

CLASS ACTION COMPLAINT 

AND DEMAND FOR JURY TRIAL 

Plaintiff Angela Williams, a Florida resident (“Plaintiff”), brings her Class Action 

Complaint (“Complaint”) on behalf of herself and a class of similarly-situated agents against 

defendant Bank of America, N.A. (“Defendant” or “BofA”) to obtain fees owed to Plaintiff as a 

result of her work as an agent (“Agent”) who assisted a business borrower (“Borrower”) in 

obtaining a Federally-guaranteed loan through the Paycheck Protection Program (“PPP”), a 

Federal bail-out program implemented to provide businesses with loans to combat the economic 

impact of COVID-19. Federal regulations require Defendant to pay Plaintiff and the proposed 

Class for their work as Agents under the PPP. The Agent was retained not by BofA, but directly 

by the Borrower to serve as its representative in the process and help it obtain the PPP loan. 

Despite Federal regulations requiring that agent fees (“Agent Fees”) be paid to Plaintiff for her 

work, Defendant has failed to pay Plaintiff and the Class Members. Instead, BofA has kept the

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 1 of 35
Page 2 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

program Agent Fees for itself. Plaintiff alleges the following based upon her knowledge and upon 

information and belief, including investigations conducted by her attorneys. 

PARTIES

1. Plaintiff Angela Williams (“Plaintiff” or “Williams”) is a Florida resident and a a 

long-time office administrator of non-party Action Roofing Services, Inc. (“Action Roofing”), a 

Florida corporation with a principal place of business located in Pompano Beach, Florida. Action 

Roofing is a state-certified and FEMA-approved roofing contractor that installs roofs primarily for 

residential customers in a range of homes, including townhouses, condos, and both large and small 

single-family homes. Action Roofing was the Borrower under the PPP, and Williams served as 

its Agent.

2. Upon information and belief, Defendant BofA is a Federally-chartered banking 

institution, with its principal place of business located in Charlotte, North Carolina. BofA is a 

citizen of the State of North Carolina. Upon information and belief, BofA conducts substantial 

business within the District. Plaintiff acted in the statutorily-defined role of an Agent in securing 

a PPP loan for one (1) Borrower of BofA in the approximate amount of $854,190. BofA’s 

Borrower’s PPP loan was funded, and it has been paid its Lender Fees by the Federal Government 

under the same PPP, which by definition include Plaintiff’s Agent Fees. Yet, having taken custody 

of the Agent Fees owed to Plaintiff paid to it by the Federal Government, BofA has failed to pay 

Plaintiff the statutorily-required fees that Plaintiff is owed. According to data made public by the

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 2 of 35
Page 3 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

SBA and S&P Global Market Intelligence1, Defendant BofA made the second most PPP loans of 

any bank in the United States and has earned to date an estimated $755mm in Lender Fees.

3. In this Complaint, when reference is made to any act of Defendant, such reference 

shall be deemed to mean that the officers, directors, agents, employees, or representatives of 

Defendant committed or authorized such acts, or failed 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 Defendant and did so while acting within the scope of their employment 

or agency.

JURISDICTION AND VENUE

4. This Court has original jurisdiction over this action under the Class Action Fairness 

Act, 28 U.S.C. § 1332(d), because this lawsuit is a proposed nationwide class action in which: (1) 

at least some members of the proposed class (“Class”) have different citizenship than 

Defendant(s); (2) the proposed Class consists of more than 100 persons or entities; and (3) the 

claims of the Class exceed $5,000,000.00 in the aggregate. 

5. This Court also has original jurisdiction over this action under 28 U.S.C. § 1331 

because the action arises under the laws of the United States, including the Coronavirus Aid, 

Relief, and Economic Security Act, the CARES Act (P.L. 116-136), and the SBA Regulations (as 

defined below).

1 See Z. Fox & Z. Tariq, US Banks Stack Millions in PPP Loan Fees, But Risks Abound, S&P 

Global Market Intelligence, https://www.spglobal.com/marketintelligence/en/newsinsights/latest-news-headlines/us-banks-stack-millions-in-ppp-loan-fees-but-risks-abound59282449 (last visited July 9, 2020). 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 3 of 35
Page 4 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

6. This Court has personal jurisdiction over Defendant because Defendant does

business in this District and/or a substantial number of the events giving rise to the claims alleged 

herein took place in Florida. 

7. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a 

substantial part of the events or omissions giving rise to the alleged claims occurred in this District 

given that Plaintiff applied on behalf of her employer for a PPP loan, and Defendant marketed, 

promoted, and took applications for, and/or funded, PPP loans in this District. 

FACTUAL ALLEGATIONS

Background 

8. On January 21, 2020, the Center for Disease Control and Prevention (“CDC”) 

confirmed the first U.S. case of a new coronavirus known as COVID-19. 

9. On January 30, 2020, the World Health Organization (“WHO”) declared the 

COVID-19 outbreak to be a “public health emergency of international concern.” 

10. On March 11, 2020, the WHO declared that the spread of COVID-19 had become 

a pandemic. 

11. On March 13, 2020, President Trump issued the Coronavirus Disease 2019 

(COVID-19) Emergency Declaration applicable to the United States that declared that the 

pandemic was of “sufficient severity and magnitude to warrant an emergency declaration for all 

states, territories and the District of Columbia.”

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 4 of 35
Page 5 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

12. On March 25, 20202, in response to the economic damage caused by the COVID19 crisis, the United States Senate passed the Coronavirus Aid, Relief, and Economic Security Act 

(the “Act”). The Act (P.L. 116-136) was passed by the House of Representatives the following 

day and signed into law by President Trump on March 27, 2020. 

13. The Act, the largest economic stimulus and rescue package in United States history, 

included $377 billion in Federally-funded loans to small businesses and a $500 billion 

governmental lending program, administered by the United States Department of Treasury

(“Treasury”) and the Small Business Administration (“SBA”), a United States government agency 

that provides support to entrepreneurs and small businesses nationwide.

The PPP: A Program Description

14. As part of the Act, the Federal Government created the $349 billion PPP, providing 

loans to small- and medium-sized businesses of less than 500 employees. The PPP was created to 

provide businesses with eight weeks of cash-flow assistance, with a certain percentage forgivable 

if utilized to retain employees and fund payrolls. The loans are backed by the SBA, administered 

by Treasury, and funded through private lenders, including banks and financial services firms

(“Lenders”) such as BofA. Pursuant to the SBA PPP Interim Final Rule codified at 13 CFR Part 

120 (the “SBA PPP Interim Final Rule”), the PPP is a limited funding program as funds are 

provided on a “first-come, first-served basis.” See SBA Business Loan Program Temporary 

Changes; Paycheck Protection Program, 85 Fed. Reg. 20811, 20813 (April 15, 2020) (to be 

codified at 13 C.F.R. pt. 120).

2 Five days later, on March 30, 2020, Florida Governor Ron DeSantis issued a statewide stay-athome Executive Order to prevent the spread of COVID-19.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 5 of 35
Page 6 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

15. Congress elected to use the SBA to distribute the PPP funds rather than create a 

new federal agency with new attendant federal bureaucracy in order to best ensure that borrowers 

in need of the bail-out monies would be rapidly connected to the Federal funds. The velocity by 

which the PPP money would find its way into the hands of the borrowers, to which the Agents 

substantially contributed, was considered to be of paramount importance to save Main 

Street America.

16. Treasury announced on April 3, 2020 that small- and medium-sized businesses and 

sole proprietors could apply and receive loans to cover their payroll and other expenses through 

approved PPP Lenders. Beginning on April 10, 2020, independent contractors and self-employed 

individuals could apply as well.

3

 

17. In its April 15, 2020 PPP Interim Final Rule, the SBA 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.”4 

18. On April 24, 2020, President Trump signed the Paycheck Protection Program and 

Health Care Enhancement Act (“PPPEA”). The PPPEA added an additional $310 billion in PPP

funding, bringing the total PPP funds available to lend to $659 billion.

3 See Paycheck Protection Program (PPP) Information Sheet: Borrowers, Dep’t of Treasury 

(last visited July 9, 2020), https://home.treasury.gov/system/files/136/PPP--Fact-Sheet.pdf.

4 See SBA Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. 

Reg. 20,811, 20,816 (April 15, 2020) (to be codified at 13 C.F.R. pt. 120).

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 6 of 35
Page 7 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

The SBA Regulations Supersede the SBA 7(a) Regulations as to Agents and Fee-Entitlement 

19. Treasury’s PPP Information Sheet (Lenders) (the “PPP ISL”), consistent with the 

SBA PPP Interim Final Rule (collectively, the “SBA Regulations”), creates a rapid-lending system 

with three (3) participants: 

a. a Lender who funds the PPP loans backed by the Federal Government; 

b. a small- or medium-sized “Main Street” Borrower who obtains the PPP 

loan for the specified purpose; and

c. an independent Agent of the Borrower, often a small- or medium-sized 

business itself, that is a local financial advisory firm, accountant, business 

consultant, payroll service, bookkeeper, attorney, or employee of the 

applicant (the “Applicant”), who is often closest to the small- and 

medium-sized local businesses, many of whom do not have their own 

banking relationships, who brings the Borrower to the Lenders and helps 

shepherd the Borrower through the PPP loan process. 

20. It is through the Agent as the Borrower’s representative that the PPP ensures the 

rapid and efficient allocation of a limited pool of dollars under its “first-come, first-served” 

approach. Without the valuable assistance of their Agents, the Borrowers, many of whom are 

unsophisticated in the banking and lending arena, would be shut out of obtaining PPP funds, 

undermining the essence of the PPP as designed by Congress. In fact, the original tranche of PPP 

funding was exhausted in about two (2) weeks after the program opened.

21. Under the same SBA Regulations, both the Lenders and Agents are paid mandatory 

fees under the PPP for their respective work to incentivize both to participate in the PPP and rapidly 

connect Borrowers to their cash infusion.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 7 of 35
Page 8 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

22. Notably, before the passage of the Act, Lenders and Agents were not compensated 

by the SBA for originating traditional SBA 7(a) loans. That is why the Act authorized the Treasury 

to establish Agent Fees and their limits. The Treasury, “in consultation with the Secretary, 

determined that the agent fee limits set forth above are reasonable based upon the application 

requirements and the fees that lenders receive for making PPP loans.”5

23. In other words, when implementing the Act, the Treasury determined that the best 

and quickest way to get the PPP loans to the small business Borrowers was to supersede many of 

the existing 7(a) loan requirements and establish new regulations where Lenders and Agents work 

together to quickly and efficiently process Applications for funding and Borrowers would be 

connected to Lenders to obtain the loans. To incentivize this relationship, the Lender and Agent 

are to split the Federal Government fees with approximately 80% to be retained by the Lender,

and 20% to be forwarded to the Agent by the Lender from its Lender Fees received.

24. The SBA Regulations define Agent6 under the PPP to broadly include:

a. “An attorney; 

b. An accountant; 

c. A consultant; 

5 SBA Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. Reg. 

at 20,816.

6 Separately, the SBA for other purposes similarly defines an “agent” in 13 CFR Section 103.1(a) 

to also include “an authorized representative, including attorney, accountant, consultant, packager, 

. . . or any other individual or entity representing an [a]pplicant . . . For purposes of SBA’s business 

loan programs, the term Agent includes but is not limited to: . . . (2) Packager: An Agent who 

prepares the Applicant’s application for financial assistance and is employed and compensated by 

the Applicant . . . (3) Loan Broker: . . . an Agent who . . . assists the Applicant in finding an SBA 

Lender that will be willing to make a loan . . . .”

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 8 of 35
Page 9 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

d. Someone who prepares an applicant’s application for financial assistance 

and is employed and compensated by the applicant; 

e. Someone who assists a lender with originating, disbursing, servicing, 

liquidating, or litigating SBA loans; 

f. A loan broker; or 

g. Any other individual or entity representing an applicant by conducting 

business with the SBA.”7 (Emphasis added).

25. The Agent, as defined by the SBA, is not the Lender’s agent, it is the Borrower’s. 

Nowhere in the Act or the SBA Regulations does the Federal Government require or mandate that 

an Agent be “approved” by a Lender in writing8 or otherwise before the Agent assists the 

7 See Paycheck Protection Program (PPP) Information Sheet: Lenders, Dep’t of Treasury (last 

visited July 9, 2020), 

https://home.treasury.gov/system/files/136/PPP%20Lender%20Information%20Fact%20Sheet.p

df.

8

 Since the initial filing of this suit, the Lenders have been working to lobby the Treasury and 

pressure certain members of Congress to obtain a PPP “bailout” of their own and have the rules of 

the road related to Agent Fees changed after the fact. Unhappy about having to share any of their 

Lender Fees with the Agents (in BofA’s case, an estimated $755mm worth) after those Agents 

assisted their Borrowers in the PPP process, reducing the Lender’s workload in the process, the 

Big Banks recently had a member of Congress at a hearing “lobby” the Treasury Secretary and ask 

a question specifically about these lawsuits. Specifically, the Congressman asked if Agents were 

entitled to fees at all under the PPP and requested a new rule change in an effort to try to insulate 

the Lenders from these class action suits. But the Lenders’ transparent lobbying efforts do not 

change the simple fact that the Agents such as Plaintiff reasonably relied on the SBA Regulations 

as they existed to work overtime to assist Borrowers to obtain the scarce bailout PPP funds in 

record time, thus contributing mightily to saving Main Street. Having done so, they should be 

paid for their work at the statutory rate from the Lender Fees regardless of any lobbying efforts or 

a subsequent ex post facto rule change. In any event, these Agents worked, not for the Lenders, 

but for the Borrowers. While it may make some sense that a Lender’s relationship with one of its 

own agents would be papered by a contract, it makes absolutely no sense that a Borrower would 

need to obtain approval from a Lender to obtain PPP assistance from its own employee, CPA, 

accountant, lawyer, or payroll service.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 9 of 35
Page 10 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

Borrower, or that the Agent even be approved by the SBA at all, to entitle the Agent to its Fee for 

the work performed under the PPP. All that is required is that the Agent fit into one of the broad 

categories outlined in Paragraph 24 above and do the work in connecting the Borrower to the PPP 

funds. Which makes perfect sense since why would the SBA Regulations require that a Borrower’s 

own Agent, who is likely one of its employees, or its CPA, accountant, bookkeeper or payroll 

service, be approved by the Lender? The answer is that it does not, despite Defendant’s insistent 

urging to the contrary. On the other hand, if the Lender hires an agent to help it obtain Borrowers, 

then it can execute and require whatever form or contract it requires. 

26. There is a fundamental reason why the PPP is not a traditional 7(a) program, nor 

do many of the 7(a) regulations and requirements apply to the streamlined, high-octane PPP, 

despite the Lender’s self-serving urging that each and every regulation of 7(a) must be grafted on 

to the PPP. It is because the SBA has expressly superseded the 7(a) program requirements with 

the new PPP requirements and where they conflict, the SBA Regulations control. See SBA 

Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. Reg. 20811, 

20816 (April 15, 2020) (codified at 13 C.F.R. pt. 120) (“The program requirements of the PPP... 

temporarily supersede any conflicting” requirements of the traditional 7(a) loan program).

27. Because the PPP is a completely new loan product with streamlined and different 

procedures and application requirements for the primary participants (Borrower, Agent and 

Lender), there are many fundamental differences between the traditional 7(a) SBA loans and PPP 

loans. For example: (1) 7(a) does not allow the SBA to compensate Lenders (or Agents) for 

originating SBA loans, while the PPP mandates a Lender Fee (as defined below); (2) 7(a) requires 

the Lender to pay the SBA a guarantee fee, while the PPP does not; (3) 7(a) does not allow Agents 

to receive a contingent fee, while the PPP does; (4) 7(a) does not require that Lenders pay Agents 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 10 of 35
Page 11 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

out of the Lender Fees (because there are none), while the PPP mandates just that; (5) 7(a) requires 

that a certain disclosure form (Form 159) be used to address and approve Agent fees, while the 

PPP expressly supersedes this requirement, disclaims the use of this form, and sets up a built-in

mandatory fee schedule instead; and (6) Agents and Lenders are narrowly defined under 7(a), 

while the PPP expands the definition of both. See Comparison Between Traditional 7(a) and PPP 

Loans attached hereto as Exhibit “A”.

28. Additionally, under the PPP, there is no collateral required for loans which are 

forgivable and 100% guaranteed by the SBA. Even the information that Borrowers need to provide 

is streamlined under the PPP9 versus the 7(a) loan program10.

29. Further, the form required by the PPP to be completed by the Borrower – the 

“Paycheck Protection Program Borrower Application Form” – tellingly omits the question 

included in the traditional SBA 7(a) loan program application (Question 10) that requires 

disclosure of an agent by the borrower.

The PPP Incentivizes all 3 Participants to Rapidly Connect Funds to Borrowers and Affirms 

the Critical Importance of the Agent Under the PPP

30. Simply put, without the critical and necessary work performed by Plaintiff and the 

Class Members as Borrower Agents under the PPP, the Act would not accomplish Congress’

expressed legislative intent: The Senate explicitly requested Treasury to “issue guidance to lenders 

and agents to ensure that the ... loans prioritize[] small business concerns and entities in 

9 See Paycheck Protection Program, Borrower Application Form, 

https://www.sba.gov/sites/default/files/2020-04/PPP%20Borrower%20Application%20Form.pdf

(last visited July 9, 2020).

10 See SBA 7(a) Borrower Information Form, https://www.sba.gov/sites/default/files/2018-

03/SBA-1919.pdf (last visited July 9, 2020).

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 11 of 35
Page 12 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

underserved and rural markets, including veterans and members of the military community, small 

business concerns owned and controlled by socially and economically disadvantaged 

individuals..., women, and businesses in operation for less than 2 years.”11 (Emphasis added). 

31. The SBA Regulations also expressly provide how each of the PPP participants

(Borrower, Lender, and Agent) will benefit from (and be compensated under) the program, to 

incentivize them to participate in the PPP and ensure the rapid distribution of the scarce Federal 

funds. For example, the PPP Borrower receives 100 percent (100%) of the loan amount without 

any deductions for fees or costs.

32. For the Lenders, the SBA Regulations provide that they will be generously

compensated Lender Fees based on the balance of the financing at the time of final disbursement. 

Specifically, the SBA is required to pay Lenders Fees in the following amounts for processing 

PPP loans:

a. Five percent (5%) for loans of not more than $350,000; 

b. Three percent (3%) for loans of more than $350,000 and less than 

$2,000,000; and

c. One percent (1%) for loans of at least $2,000,000.

12

33. In addition, the Lenders (but not the Agents) have the opportunity to earn interest 

on the PPP loans if they are not forgiven under the program.

34. For the Agents, the SBA Regulations incentivize them to bring the Borrowers and 

their loan packages to the Lenders, or otherwise doing the work required to connect the Borrower 

11 H.R. 748, CARES ACT, PL 116-136 (March 27, 2020; 134 Stat. 281). 

12 Id.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 12 of 35
Page 13 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

to the PPP funds, by expressly providing that “Agent [F]ees will be paid out of lender fees. The 

lender will pay the agent. Agents may not collect any fees from the applicant.” (Emphasis added).

“The total amount of Agent Fees that an agent may collect from the lender may not exceed: 

a. One (1) percent for loans of not more than $350,000; 

b. 0.50 percent for loans of more than $350,000 and less than $2 

million; and 

c. 0.25 percent for loans of at least $2 million”13.

35. The SBA Regulations also reflect that the Secretary of the Treasury “determined 

that the [A]gent [F]ee limits . . . are reasonable based upon the application requirements and the 

fees that lenders receive for making PPP loans.”14

36. By its terms, the PPP does not allow the Lender to negotiate or “pre-approve” the 

amount of fees the Agent will receive under the PPP. That is addressed in the SBA Regulations, 

including the portion of the Lender Fee the Agent is entitled to for bringing the Borrower and its 

completed application to the Lender or otherwise doing the work required to connect the Borrower 

to the PPP funds. 

37. Based on information and belief, BofA funded PPP loans for Borrowers represented 

by Plaintiff and the Class, received its Lender Fees from the Federal Government (an estimated 

$755mm worth to date), and failed to pay the Agent Fees earned by the Plaintiff and Class out of 

the Lender Fees received.

13 Id.

14 See SBA Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. 

Reg. 20,811, 20,816 (April 15, 2020) (to be codified at 13 C.F.R. pt. 120).

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 13 of 35
Page 14 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

38. Despite Plaintiff’s important (and successful) work in assisting its employer 

Borrower with its Application and persistent requests for Agent Fees, BofA has failed and refused 

to pay the required Agent Fees to Plaintiff and the Class, and has instead retained the Agent Fee 

portion of the Lender Fees received from the Federal Government for itself. 

39. Defendant, as well as other Lenders in general, often cite to their own internal 

policies, or lack of non-required procedures (i.e., no agreement between Defendant and Plaintiff 

as to Agent Fees or no Agent disclosure and unawareness of an Agent’s existence), for refusing to 

pay the Agent Fees, or attempting to reduce the statutorily-mandated fee owed to the Agents under 

the PPP and consistent with Congressional intent.

40. As a result, Plaintiff and the Class Members are not being compensated for their 

work, and for their valuable and necessary contribution to the PPP as intended by Congress.

Plaintiff, in her Role as the Borrower’s Agent, Assists her Employer With Applying for a 

PPP Loan

41. On or about March 27, 2020, Plaintiff became aware that the Act had been signed 

into law. Plaintiff, knowing that the COVID-19 crisis would severely impact her 

employer’s roofing business, assisted her employer with obtaining a PPP loan through BofA. 

42. Plaintiff spent considerable time becoming familiar with the Act, and the related 

SBA Regulations, and, 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.

43. In or about April 2020, Plaintiff, in her role as an Agent, assisted Action Roofing,

as a Borrower under the PPP, in the gathering and analysis of its documents, as well as the 

calculation and preparation of the loan application (the “Application(s)”), and in trying to contact 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 14 of 35
Page 15 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

Defendant who eventually (after weeks of persistently being ignored by Defendant) processed the

PPP loan in the “race to the bank” environment created by the first-come, first-served nature of 

the PPP. 

44. Based on the SBA Regulations, Plaintiff understood that the only compensation she 

would receive wasfrom the mandated Agent Feesthat were advanced to the Lenders by the Federal 

Government for the Plaintiff’s and Class Members’ benefit as part of the statutory

Lender Fees.

45. To prepare the documentation, Plaintiff assisted her employer in gathering the 

required information and preparing the Applications, including the following, where applicable

or necessary:

a. Loan Calculator Spreadsheet;

b. SBA Form 2483;

c. Addendum A: Affiliates;

d. Information on whether the applicant received an SBA Economic Injury 

Disaster Loan (“EIDL”);

e. Certificate of Beneficial Ownership Interest;

f. Driver’s Licenses;

g. Articles of Incorporation or Articles of Organization;

h. 2019 IRS/State Payroll Forms;

i. 2019 Payroll Summary Report by each Employee; 

j. 2019 Health Insurance Premium Paid, including each monthly statement 

or year-end summary;

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 15 of 35
Page 16 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

k. 2019 Retirement Matching Plan Paid, including each monthly statement 

or year-end summary; 

l. 2020 1st QTR 941 Form;

m. January 2020 Payroll Summary by Employee;

n. February 2020 Payroll Summary by Employee;

o. March 2020 Payroll Summary by Employee;

p. Health Insurance Premium Paid – January, February, and March 2020;

q. Retirement Matching Plan Paid – January, February, and March 2020;

r. Wiring Instructions; and

s. Copy of the Borrower’s most recent bank statement,

 (collectively, (a) – (s) above are part of the Application).

46. In addition, Plaintiff spent multiple weeks just trying to get the attention of 

Defendant to process the loan Application and was not aided until she revealed her employer would 

take its business elsewhere. 

47. Plaintiff reasonably relied on the existing SBA Regulations 

to expect her earned Agent Fees from the Lenders after the funding of her employer’s PPP loan. 

48. But BofA did not comply with the SBA Regulations in distributing the Agent Fees

from the estimated $755mm in Lender Fees paid to them by the Federal Government under 

the PPP. 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 16 of 35
Page 17 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

49. Specifically, Defendant, as a Lender under the PPP and without any legal 

authority15 under the SBA Regulations or otherwise, refused to pay Agents such as Plaintiff the 

required statutory Agent Fees from the fees it obtained from the Federal Government, or Defendant 

repudiated the Agent’s role and refused to pay the required Agent Fees as a 

general policy.

50. As a result of Defendant’s unlawful actions, Plaintiff and the Class Members have 

suffered financial harm by: (a) being deprived of the statutorily-mandated compensation for the 

professional services that they provided in connection with assisting their clients and employers in 

applying for and obtaining PPP loans, and (b) being denied by Defendant just compensation for 

playing the vital role of Agents in the PPP process on behalf of the intended beneficiaries of the 

program, the small- and medium-sized business owners. 

Class Action Allegations

51. Plaintiff brings this action on behalf of herself and all other similarly-situated Class 

members pursuant to Rules 23(b)(1), (b)(2), (b)(3) and (b)(4) of the Federal Rules of Civil 

Procedure and seeks certification of the following Nationwide Class: 

15 Demonstrating further the merit of Plaintiff’s claim and supporting the assertion that the Lenders 

have no legal authority to unilaterally refuse to pay Agent Fees (and despite their current lobbying 

efforts), on May 27, 2020, one of the PPP Lenders received a civil investigative demand (“CID”) 

from the U.S. Department of Justice (the “DOJ”) pursuant to the False Claims Act. The CID 

directed that Lender and its affiliated entities “to produce certain documents and respond to written 

interrogatories relating to the PPP loans approved by the Bank, the Bank’s non-payment of fees to 

agents of borrowers and the Bank’s policies related to payment or non-payment of agent fees.” 

See United Community Banks, Inc., Form 8-K (last visited July 9, 2020), https://ir.ucbi.com/staticfiles/c7f8eaa8-d6bf-48e8-8ebc-a60c0bf3adea. United Community Banks, Inc. is a named 

defendant in another lawsuit based on the same allegations in the Northern District of Georgia, 

1:20-cv-02026-LMM, which like this suit, is the subject of a pending application for consolidation 

to the Judicial Panel on Multidistrict Litigation to be heard on July 30, 2020. In addition, more 

than a few Lenders have agreed with Plaintiff’s legal position here, and have agreed to pay the 

Agent Fees from their Lender Fees.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 17 of 35
Page 18 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

All Agents who assisted a business in preparing an Application for a PPP 

loan pursuant to the Act (the “Nationwide Class”). 

52. To the extent that a Nationwide Class is not certified, in the alternative, Plaintiff 

brings this action on behalf of herself, and all other similarly situated Class members pursuant to 

Rules 23(b)(1), (b)(2), (b)(3) and (b)(4) of the Federal Rules of Civil Procedure and seeks 

certification of the following Statewide Class: 

All Agents who assisted a business in Florida in preparing an Application 

for a PPP loan pursuant to the Act (the “Statewide Class”). 

The Nationwide and Statewide Class may hereafter be referred to as the “Class”. 

53. For purposes of the Class definition, the term “Agent” has the same meaning as an 

“agent” under the SBA Regulations and as follows: 

All Agents (as that term is defined by the SBA Regulations) that facilitated 

businesses in receiving a loan under the PPP, i.e., met the criteria for eligibility 

and were not otherwise ineligible, between February 15, 2020, and June 30, 

2020, who timely applied for a PPP loan through various Lenders and were 

processed and approved for funding, and for whom the Lenders received their 

Lender Fees.

54. Plaintiff reserves the right to expand, limit, modify or amend this Class definition, 

including the addition of one or more subclasses in connection with Plaintiff’s motion for class 

certification, or any other time, based upon, inter alia, changing circumstances and/or new facts 

obtained during discovery. 

55. The following are excluded from the Class and/or Subclass: (a) any Judge or 

Magistrate presiding over this action and members of their families; (b) the officers, directors, or 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 18 of 35
Page 19 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

employees of Defendant; and (c) all persons who properly execute and file a timely request for 

exclusion from the Class. 

56. Numerosity: The Class is composed of thousands of Agents (the “Class Members”)

whose joinder in this action would be impracticable. See Fed. R. Civ. P. 23(a)(1). The disposition 

of their claims through this class action will benefit all Class Members, the parties, and the courts. 

57. Commonality: There is a commonality in questions of law and fact affecting the 

Class. See Fed. R. Civ. P. 23(a)(2). These questions of law and fact include, but are not limited 

to the following: 

a. Whether Plaintiff is an “agent” as that term is defined by the Act and the 

SBA Regulations; 

b. Whether Defendant was obligated to pay Plaintiff and the Class, Agent 

Fees from the Lender Fees it received under the SBA Regulations; 

c. Did Defendant comply with all applicable SBA Regulations in processing 

Applications for PPP funds and in distributing PPP funds?;

d. Did Defendant comply with its legal obligations under the terms of the 

Act and the SBA Regulations as a lender of the PPP funds?;

e. Did Defendant by its conduct and representations lead Plaintiff to 

reasonably believe that she would pay the Agent Fees under the PPP for 

her work representing the PPP Borrower?

f. Did Defendant obtain Lender Fees for closing the PPP loan for Plaintiff’s

employer, the PPP Borrower?

g. Did Defendant have a policy and/or practice of failing to compensate 

Agents and pay them the required Agent Fees out of its Lender Fees for 

their work in facilitating PPP loans to the detriment of the Class?;

h. Did Defendant prioritize its Lender Fees over abiding by the Act and the 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 19 of 35
Page 20 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

SBA Regulations?;

i. Did Defendant’s conduct in not paying the Agent Fees out of the Lender

Fees it received constitute a conversion of the Agent Fees owed to the 

Plaintiff and the Class?;

j. Did Defendant possess exclusive knowledge of material facts concerning

the Application process, i.e., that the Agents would not receive the 

required compensation, i.e., Agent Fees, when assisting applicants with 

the PPP loan process?;

k. Did Defendant actively conceal a material fact or facts from Plaintiff and 

the Class Members that the Agent was not going to receive its earned 

Agent Fees when assisting with the Applications?;

l. Whether Defendant’s conduct, as alleged herein, was intentional

and knowing?;

m. Whether Plaintiff and the Class Members are entitled to damages and/or 

restitution, and if so, what is the amount of revenues and/or profits 

Defendant received and/or was lost by Plaintiff and the Class Members as 

a result of the conduct alleged herein?;

n. Whether Defendant is likely to continue to mislead the public and the 

Class Members and continue to violate SBA Regulations regarding 

paying Agents their earned fees under the Act?; 

o. Whether Plaintiff and the Class Members, after discovery, have proved 

sufficient facts to entitle them to an award of punitive damages?; and 

p. Whether Plaintiff and the Class Members are also entitled to an award of

reasonable attorneys’ fees, pre-judgment interest, and costs of suit?

58. Typicality: Plaintiff’s claims are typical of, and are not antagonistic to, the claims 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 20 of 35
Page 21 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

of all Class Members in that the claims for relief are based on the same legal principles and theories 

arising from the same actions and omissions of Defendant affecting all Class Members. See Fed. 

R. Civ. P. 23(a)(3). Plaintiff and the Class Members have all been harmed by Defendant’s unfair 

and unlawful PPP loan application and funding practices, as alleged herein, and all Class Members 

were injured in the same way by the acts and omissions of Defendant. The factual and legal basis 

of Defendant’s liability to Plaintiff and each Class Member as a result of Defendant’s actions as 

described herein are defined by substantively identical provisions in the SBA Regulations under 

the Act. Defendant’s purported defenses to the claims, both legal and factual, are typical of the 

defenses it would try to raise in response to the Class’s claims. 

59. Adequacy: Plaintiff is an adequate representative of the Class because she is a

member of the Class, and Plaintiff’s interests do not conflict with the interests of the other Class 

Members that Plaintiff seeks to represent. See Fed. R. Civ. P. 23(a)(4). Plaintiff will fairly and 

adequately represent and protect the interest of the other Class Members. Plaintiff has retained 

counsel with substantial experience in litigating complex cases, including consumer fraud and 

class actions. Both Plaintiff and her counsel will vigorously prosecute this action on behalf of the 

Class and have the financial ability to do so. Neither Plaintiff nor her counsel have any interest 

adverse to other Class Members. 

60. Predominance: The above questions of law and fact predominate over individual 

questions affecting the Class Members. Defendant’s conduct described in this Complaint all stems 

from ignoring their obligations under the SBA Regulations setting forth the policy and procedures 

for payment of Agent Fees that are readily calculable from Defendant’s records and other Classwide evidence. Class Members do not have an interest in pursuing separate individual actions 

against Defendant as the amount of each Class Member’s claim is relatively small compared to 

the expense and burden of individual prosecution. The management of this action as a class action 

will not present any likely difficulties. In the interests of justice and judicial efficiency, it would 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 21 of 35
Page 22 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

be desirable to concentrate the litigation of all Class Members’ claims in a single action. See Fed. 

R. Civ. P. 23(b)(3).

61. Superiority: In engaging in the conduct described herein, Defendant has acted 

and/or failed to act on grounds generally applicable to Plaintiff and other Class Members. Such 

conduct requires the Court’s imposition of uniform relief to ensure compatible standards of 

conduct toward Class Members. A class action is superior to all other available means for the fair 

and efficient adjudication of Plaintiff’s and the Class Members’ claims. Few, if any, Class 

Members could afford to seek legal redress of the wrongs complained of herein on an individual 

basis. Absent a class action, Class Members and the general public would not likely recover, or 

have the chance to recover, damages or restitution, and Defendant would be permitted to retain the 

fruits of their misdeeds. Any difficulties that might occur in the management of this proposed 

class action are insubstantial. See Fed. R. Civ. P. 23(b)(1)(A).

62. Ascertainability: Plaintiff are informed and believe that Defendant keeps extensive 

electronic records of its loan Applications through, inter alia, computerized loan application 

systems, and Federally-mandated record-keeping practices. Defendant has one or more 

database(s) through which all of the Borrowers may be identified and ascertained, and through it 

maintains contact information, including email and mailing addresses. From this information, the 

existence of the Class Members (i.e., the Agent for the Borrower) can be determined, and 

thereafter, notice of this action can be disseminated in accordance with due process requirements. 

63. Neither Plaintiff nor the Class Members have previously litigated the claims 

asserted in this Complaint.

COUNT I

DECLARATORY RELIEF

64. Plaintiff incorporates by reference the foregoing allegations as if the same were 

fully alleged herein.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 22 of 35
Page 23 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

65. Plaintiff asserts this cause of action on behalf of herself and other Class Members 

as Agents defined by the SBA Regulations. 

66. Plaintiff, as an Agent under the PPP, assisted her employer, the PPP Borrower

(Action Roofing) with submitting an Application to obtain a PPP loan under the Act, shepherded 

the Borrower through the complexities of the PPP loan process, which led to a funded PPP loan. 

Defendant failed to pay Agent Fees owed to Plaintiff as required by SBA Regulations, and/or 

violated the SBA Regulations by refusing to recognize the existence of the Agent and her 

entitlement to Agent Fees, despite having been paid its own Lender Fees under the same PPP. 

Instead, Defendant kept all of the origination and processing fees for itself in direct violation of 

the SBA Regulations.

67. Specifically, Plaintiff documented her demand for her Agent Fee in a series of 

emails with a BofA Assistant Vice President, Small Business Consultant.

68. On June 2, 2020, Plaintiff sent the following email to the BofA Assistant Vice 

President affirming that she did not use a CPA, did the research herself, and submitted all the 

necessary materials for the PPP loan on behalf of the Borrower. 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 23 of 35
Page 24 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

69. When the BofA Assistant Vice President replied, he conceded that Plaintiff was 

entitled to the Agent Fee. In fact, he attached an excerpt of the very same SBA Regulations 

referenced in Paragraph 19 herein. 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 24 of 35
Page 25 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

70. The BofA Assistant Vice President also attached the PPP ISL, which reads, “Agent 

fees will be paid out of lender fees. The lender will pay the agent. Agents may not collect any fees 

from the applicant,” as noted in Paragraph 34.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 25 of 35
Page 26 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

71. The following day, June 3, 2020, Plaintiff sent an invoice to the BofA Assistant 

Vice President representing her statutory Agent Fee in the statutory amount of $4,270.95based on 

the $854,190 loan that Action Roofing, her employer, received. 

72. Despite BofA agreeing with Plaintiff that she was entitled to the Agent Fee under 

the SBA Regulations, Defendant has refused to pay her as of the date of the filing of this suit. 

73. A bona fide adverse interest exists between Plaintiff and Defendant with respect to 

Plaintiff’s and the Class Members’ right to the Agent Fees owed by Defendant, and Defendant

denies that any Agent Fees are owed to Plaintiff. Plaintiff and the Class Members have a legally 

protectable interest under the SBA Regulations in that they are entitled to their mandated Agent 

Fees in connection with the professional services rendered to their clients or employers in 

preparing and submitting Applications for PPP funds. 

74. Cavalierly ignoring the clear and unequivocal Agent Fee mandate in the PPP and 

SBA Regulations, as well as the procedures and application requirements expressly created by 

Congress to be distinct from pre-PPP SBA 7(a) loan requirements, all of which have been 

acknowledged by other Lenders, Defendant hasskirted its statutory obligations under the irrelevant 

premise that Plaintiff did not have any agreement with Defendant for Agent Fees, nor did Plaintiff 

disclose herself as an Agent, and thus Defendant purportedly was not aware of Plaintiff’s 

existence.

75. Plaintiff rejects Defendant’s erroneous interpretation of the PPP (at odds even with 

other Lenders’ positions) and contends that she is entitled to the Agent Fees for the work she 

performed under the PPP and in accordance with SBA Regulations, which supersede the traditional 

SBA 7(a) loan requirements and procedures, and specifically require fees to be paid to the Agents

out of the Lender Fees received for each loan it processes. Indeed, Defendant, as a Lender, knows

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 26 of 35
Page 27 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

or should know about the Act and the SBA Regulations (and all guidance concerning the PPP), 

which informed them of the mandated Agent Fees. For this Lender to feign ignorance of the SBA 

Regulations or urge an unreasonable interpretation and construction of the SBA Regulations and 

the Act that Agents are only entitled to be paid for their work with Borrowers if and only if the 

Lenders approve of their arrangement first in order to deny paying the Agent Fees is in bad faith.

76. Defendant has failed and refused, and continue to fail and refuse, to pay the 

mandated Agent Fees to Plaintiff and the Class Members as required under the SBA Regulations. 

77. Plaintiff and the Class Members seek a declaration, in accordance with the SBA 

Regulations and pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that Defendant is

required under the SBA Regulations to pay the Agent Fees at the statutory amount on each loan 

funded involving an Agent, out of the Lender Fees it received under the very same PPP from the 

Federal Government.

COUNT II

VIOLATIONS OF THE CARES ACT

78. Plaintiff hereby incorporates by reference the foregoing allegations as if fully set 

forth herein.

79. The Act provides a stimulus package in response to the COVID-19 pandemic and 

includes the PPP, which provides unprecedented financial assistance to small- and medium-sized

businesses to prevent them from going under.

80. There is an implied cause of action arising under the Act, as: (i) Plaintiff is a 

member of the class for whose benefit the Act was enacted; (ii) it was Congress’ intent to create a 

remedy for Plaintiff under the Act; (iii) it is consistent with the underlying purposes of the Act to 

imply such a remedy; and (iv) Plaintiff’s cause of action is not traditionally relegated to state law, 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 27 of 35
Page 28 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

nor is it in an area that is traditionally the concern of the States.

81. The Act, along with the SBA Regulations, provides for the payment of Agent Fees 

to authorized representatives who assisted PPP loan applicants with their PPP Applications (i.e., 

PPP Agents consisting of Plaintiff and the Class Members).

82. In disregard for the law, Defendant has failed and/or refused to pay the Agent Fees 

to the Borrowers’ authorized representatives (i.e., PPP Agents consisting of Plaintiff and the Class 

Members), and instead kept the fees to enrich itself.

83. Plaintiff and Class Members are PPP Agents under the Act and the SBA 

Regulations and, therefore, are entitled to the Agent Fees they have earned. The Agent Fees have 

been paid to the Lenders by the Federal Government and are to be paid by the Lenders to the

Plaintiff and Class Members as set forth in the Act and the SBA Regulations.

84. Nevertheless, Defendant refused to pay Plaintiff and the Class Members the 

authorized Agent Fees.

85. As a direct and proximate result of Defendant’s failure and/or refusal to comply 

with the Act and the SBA Regulations, Plaintiff and the Class Members have suffered damages in 

excess of $5 million.

COUNT III

VIOLATIONS OF THE SBA’s 7(a) LOAN 

PROGRAM, 15 U.S.C. § 636(a)

86. Plaintiff hereby incorporates by reference the foregoing allegations as if fully set 

forth herein.

87. In order to rapidly connect limited PPP funds to Borrowers in desperate need of a 

cash-infusion following the COVID19 pandemic and State-ordered business closings and 

quarantines, the Treasury, rather than creating a new federal bureaucracy, instead designated the 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 28 of 35
Page 29 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

SBA to administer the PPP.

88. The SBA in turn elected to expand its existing 7(a) loan program to include the 

PPP, but expressly superseded many of the rules and regulations of 7(a) and replaced them with a 

substantially streamlined set of PPP requirements, the above-referenced SBA Regulations.

89. There is an implied cause of action arising under the SBA’s 7(a) loan program, as 

applied through the Act, as: (i) Plaintiff is a member of the class for whose benefit the Act was 

enacted; (ii) it was Congress’ intent to create a remedy for Plaintiff under the Act; (iii) it is 

consistent with the underlying purposes of the Act to imply such a remedy; and (iv) Plaintiff’s 

cause of action is not traditionally relegated to state law, nor is it in an area that is traditionally the 

concern of the States.

90. The SBA Regulations provide for the payment of Agent Fees to authorized 

representatives that assisted PPP Borrowers with their PPP Applications (i.e., PPP Agents 

consisting of the Plaintiff and the Class Members).

91. In disregard for the law, Defendant has failed and/or refused to pay Agent Fees to 

Plaintiff and the Class Members, and instead have kept the fees to enrich itself. By contrast, other 

Lenders have agreed with Agents such as Plaintiff and have agreed to pay the Agent Fees from 

their Lender Fees paid as part of the PPP.

92. Further, Defendant by its conduct, including participating as a PPP Lender, is bound 

to comply with the SBA Regulations as agents of the Federal Government, and to pay the Agent 

Fees out of the Lender Fees received under the PPP. Defendant, by its conduct, also led Plaintiff 

and the Class Members to reasonably believe that they would be paid for their services as the 

Borrowers’ Agents.

93. As a direct and proximate result of Defendant’s wrongful actions, Plaintiff and the 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 29 of 35
Page 30 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

Class Members have suffered damages in excess of $5 million. 

COUNT IV

CONVERSION

94. Plaintiff incorporates by reference the foregoing allegations as if the same were 

fully alleged herein. 

95. Under the SBA Regulations, Plaintiff and the other Class Members have an 

immediate right to the mandatory and identifiable Agent Fees owed to them to be paid from the 

Lender Fees provided to Defendant for lending money pursuant to the approved Applications.

96. Under the PPP, the Agent cannot look to the Treasury or to the Borrowers for direct 

payment of their Agent Fees. Instead, the Agent Fees are paid to the Lender as part of the Lender 

Fees, and the Lender is obligated to pay the Agent Fees over to the Agent.

97. As alleged herein, the Agent Fees were paid to the Lenders as part of the Lender 

Fees paid to Defendant for the Borrower’s loan. The Lender Fees were placed in Defendant’s 

custody to be used to pay Plaintiff and the other Class Members the Agent Fees they had earned.

98. Defendant is obligated to pay Plaintiff and other Class Members the mandatory 

Agent Fees according to the SBA Regulations.

99. Defendant willfully interfered with the rights of Plaintiff and the other Class 

Members, without legal justification, when it misappropriated and retained the monies paid to 

Defendant as part of its Lender Fees, and allocated by Treasury for the Agent Fees due upon the 

funding of Plaintiff’s and the other Class Members’ clients’ or employers’ PPP loans.

100. Defendant deprived Plaintiff and the other Class Members of the ownership, 

possession, and control of the Agent Fees and misappropriated them for their benefit through their 

unauthorized dominion over the Agent Fees.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 30 of 35
Page 31 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

101. Under prevailing law, money may be the subject of a conversion claim if the money 

can be described, identified, or segregated, and an obligation to treat it in a specific manner is 

established. That requirement is met because the Agent Fees are a segregated portion of the Lender 

Fees awarded through the SBA Regulations for a successfully funded PPP loan. 

102. At the time it unlawfully retained the Agent Fees, Defendant knew or should have 

known that the Agent Fees paid to it as part of their Lender Fees were owed to Plaintiff and the 

other Class Members. 

103. Defendant’s conduct manifests a willful or reckless disregard of Plaintiff’s and the 

Class Members’ right of possession to the monies owed to them. 

104. Defendant’s improper acts or practices of refusing to pay Plaintiff and the other 

Class Members the mandated Agent Fees are the proximate cause of the damages sustained by 

Plaintiff and the Class Members. 

105. Plaintiff and the Class Members respectfully request that this Court cause 

Defendant to disgorge the amount of the Agent Fees wrongfully misappropriated and converted 

by Defendant to Plaintiff and all Class Members, enjoin Defendant from continuing the improper 

acts as discussed herein, and award Plaintiff and all Class Members compensatory damages, 

punitive damages and such other damages and relief that this Court deems just and proper. 

COUNT V

UNJUST ENRICHMENT

106. Plaintiff incorporates by reference the foregoing allegations as if the same were 

fully alleged herein. 

107. To the extent that this Court finds no violation of the Act, Plaintiff asserts this cause 

of action on behalf of herself and other Class Members as Agents. Defendant has been, and 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 31 of 35
Page 32 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

continues to be, unjustly enriched, to the detriment and at the expense of Plaintiff and the Class 

Members as a result of Defendant’s wrongful withholding of Agent Fees from the Lender Fees it 

received, and are now owed to Plaintiff and the Class Members. Defendant has been unjustly 

benefitted through the unlawful and wrongful retention of monies due to the Agents (i.e., the Agent 

Fees) as a result of the funding of the PPP loans, and Defendant’s receipt of their Lender Fees 

under the same program. Specifically, Plaintiff and the Class Members provided services to the 

Borrowers to help each Borrower obtain a PPP loan. Defendant then retained for their benefit 

Agent Fees that Plaintiff and the Class Members were entitled to be paid for work performed and

continue to benefit to the detriment and at the expense of Plaintiff and the Class Members. 

108. To participate in the PPP, “Lenders must comply with the applicable lender 

obligations set forth in this [SBA PPP Final Rule]....”16 Despite Plaintiff’s and the Class

Members’ considerable efforts serving as PPP Agents on behalf of the Borrowers, Defendant has

failed to pay the statutory-required Agent Fees in violation of the SBA Regulations. 

109. Plaintiff and the Class Members provided Defendant with the Borrowers’ and the 

PPP Loans with the reasonable expectation of being paid as an Agent under the SBA Regulations. 

110. Defendant by its conduct, including participating as a PPP Lender, are bound to 

comply with the SBA Regulations as agents of the Federal Government, and to pay the Agent Fees 

out of the Lender Fees received under the PPP. Defendant, by its conduct, also led Plaintiff and 

the Class Members to reasonably believe that they would be paid for their services as the 

Borrowers’ Agents. 

16 SBA Business Loan Program Temporary Changes; Paycheck Protection Program, 85 Fed. 

Reg. at 20,812.

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 32 of 35
Page 33 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

111. Instead, Defendant has retained the full amount of the Lender Fees from which the 

SBA Regulations require Agent Fees to be paid. Therefore, Defendant has unfairly retained fees 

intended to benefit and compensate Plaintiff and the Class Members for their efforts in promoting 

the interests of the Act and ensuring that small businesses receive PPP loans.

112. By holding itself out as a PPP lender, Defendant by its conduct requested Plaintiff 

and the Class Members to assist Borrowers with their PPP Applications and have the Applications 

submitted to Defendant for approval.

113. Defendant has failed and refused to pay the monies owed to Plaintiff and the Class 

Members, despite multiple requests for the Agent Fees, and are choosing to retain the Agent Fees 

for itself in direct violation of SBA regulations. 

114. Plaintiff and the Class Members have no other means of obtaining compensation 

because the SBA Regulations prohibit PPP Agents from receiving payment from any other source 

other than the Lender Fees and expressly prohibit fees from the Borrowers. 

115. Defendant’s conduct willfully and intentionally negates the terms of the SBA 

Regulations by unilaterally refusing to forward to the PPP Agents the mandated Agent Fees that 

the Federal Government entrusted to the Lenders. Defendant’s actions render those terms 

superfluous and undermine the intent of Congress to promote small business loans under the PPP 

and Act. 

116. It is against equity and good conscience that Defendant be permitted to retain the 

benefits conferred upon it by Plaintiff and the Class Members. 

117. Plaintiff and the Class Members respectfully request this Court to order Defendant 

to disgorge the amount of the Agent Fees which Defendant wrongfully misappropriated from 

Plaintiff and the Class Members, enjoin Defendant from continuing the improper acts as discussed 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 33 of 35
Page 34 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

herein, and award Plaintiff and the Class Members such other damages and relief that this Court 

deems just and proper. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the Class Members, prays for the 

following relief:

A. An Order certifying the Class as defined above, appointing Plaintiff as the Class 

Representative for the Class, and appointing Plaintiff’s counsel as Class counsel 

for the Class;

B. An Order declaring Defendant’s actions to be unlawful; 

C. An Order declaring that all regulatorily-mandated and calculated Agent Fees are 

owed to Plaintiff and the Class Members and should be deposited into a mutually 

agreeable fund or funds within 60 days, to be distributed to the PPP Agents who 

are entitled to the funds;

D. An award of punitive damages if such facts to support such damages are developed 

in discovery and the Court grants Plaintiff’s motion for leave to amend;

E. An award of all recoverable compensatory, statutory, and other damages sustained 

by Plaintiff and the Class Members, as well as all injunctive or equitable relief 

including disgorgement and enjoining Defendant from continuing the improper 

acts as identified herein, and all other available relief under 

applicable law; 

F. Reasonable attorneys’ fees and expenses as permitted by applicable statutes

and law;

G. Costs related to bringing this action; 

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 34 of 35
Page 35 of 35

BALES SOMMERS & KLEIN, P.A.

ONE BISCAYNE TOWER ♦ 2 SOUTH BISCAYNE BOULEVARD ♦ SUITE 1881 ♦ MIAMI, FLORIDA 33131

TELEPHONE (305) 372-1200 ♦ FACSIMILE (305) 372-9008

H. Pre and post-judgment interest as allowed by law; and

I. Such further relief at law or in equity that this Court deems just and proper.

JURY TRIAL DEMAND

Plaintiff, individually, and on behalf of the Class Members, hereby demands a trial by jury

on all claims and issues so triable pursuant to Federal Rule of Civil Procedure 38(a).

Dated: July 10th, 2020

Respectfully submitted,

Jason Klein, Esq.

BALES SOMMERS & KLEIN, P.A.

Attorney(s) for Plaintiff and the 

Proposed Class

One Biscayne Tower

2 South Biscayne Blvd. Suite 1881

Miami, Florida 33131

Telephone: (305) 372-1200 

Fax: (305) 372-9008

E-Mails: jklein@bsklawyers.com

rbalesjr@bsklawyers.com

By: /s/Jason Klein

Jason Klein, Esq.

 Florida Bar No.: 129097

Case 0:20-cv-61392-WPD Document 1 Entered on FLSD Docket 07/10/2020 Page 35 of 35