1 

 IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF FLORIDA 

PENSACOLA DIVISION 

SPORT & WHEAT CPA PA ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Case No. 3:20-cv-05425-TKW-HTC 

 ) 

SERVISFIRST BANK, ) 

SYNOVUS BANK, THE FIRST, ) 

and TRUIST BANK, ) 

 ) 

 Defendants. ) 

DEFENDANT SERVISFIRST BANK’S 

MOTION TO DISMISS THE AMENDED COMPLAINT 

 AND SUPPORTING MEMORANDUM OF LAW 

In March of this year, Congress passed the Coronavirus Aid, Relief, and 

Economic Security Act, Pub. L. No. 116- 136 (the “CARES Act” or the “Act”). 

Prominent in the Act was the Paycheck Protection Program (the “PPP”), which 

was designed to get money into the hands of small businesses so that they could 

continue to pay their employees during the economic downturn created by the 

COVID-19 pandemic. To accomplish that goal, the PPP authorized loans to 

small businesses—loans to be made by lenders like the defendants here and to be 

guaranteed by the Small Business Administration (“SBA”). In recognition of the 

important role of lenders in the PPP program and the efforts that would be 

required of them to process these loans, Congress directed the SBA to 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 1 of 30
2 

“reimburse” lenders for their efforts, and Congress set specific amounts for that 

“reimbursement.” See 15 U.S.C. § 636 (a)(36)(P) (directing that “[t]he 

Administrator shall reimburse a lender” in specified amounts and further 

directing that the “reimbursement ... shall be made not later than 5 days after the 

disbursement of the covered loan.”). 

Plaintiff Sport & Wheat CPA PA (“S&W”) now asks the Court to ignore 

this clear Congressional directive and divert millions of dollars of statutorilymandated fees to unknown third parties. On behalf of all “agents,” S&W 

demands that lenders pay everyone who claims to have helped a borrower obtain 

a PPP loan—regardless of whether the “agent” had any agreement with a lender. 

There is no legal basis for this demand. Accordingly, pursuant to Federal Rule 

of Civil Procedure 12(b)(6), the Amended Complaint should be dismissed with 

prejudice. 

STATEMENT OF FACTS 

I. The CARES Act and the PPP 

On March 27, 2020, President Trump signed the CARES Act into law. 

The Act established a new SBA loan program, the PPP, and directed the SBA to 

reimburse lenders participating in the program in specific amounts. The Act 

provides: 

(P) Reimbursement for processing 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 2 of 30
3 

(i) In general 

The Administrator shall reimburse a lender 

authorized to make a covered loan at a rate, based 

on the balance of the financing outstanding at the 

time of disbursement of the covered loan, of – 

(I) 5 percent for loans of not more than 

$350,000; 

(II) 3 percent for loans of more than 

$350,000 and less than $2,000,000; 

and 

(III) 1 percent for loans of not less than 

 $2,000,000. 

15 U.S.C. § 636(a)(36)(P)(i). 

 

In contrast to this clear and specific Congressional direction that lenders 

be paid certain amounts to reimburse them for their efforts in processing PPP 

loans, Congress did not direct that agents involved in the PPP process be paid 

anything. Instead, Congress authorized the SBA to limit the amount of any fee 

that could be collected by an agent for assisting a borrower in preparing a PPP 

loan application. See 15 U.S.C. § 636(a)(36)(P)(ii) (“An agent that assists an 

eligible recipient to prepare an application for a covered loan may not collect a 

fee in excess of the limits established by the Administrator.”). 

On April 15, 2020, the SBA promulgated the First Interim Final Rule, 85 

Fed. Reg. at 20,811 (“IFR” or “First IFR”), by which, among other things, it 

established limits on agent fees. The First IFR states: 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 3 of 30
4 

Who pays the fee to an agent who assists a borrower? 

Agent fees will be paid by the lender out of the fees the 

lender receives from SBA. Agents may not collect fees 

from the borrower or be paid out of the PPP loan proceeds. 

The total amount that an agent may collect from the lender 

for assistance in preparing an application for a PPP loan 

(including referral to the lender) may not exceed: 

i. One (1) percent for loans of not more than 

 $350,000; 

ii. 0.50 percent for loans of more than 

$350,000 and less than $2 million; and 

iii. 0.25 percent for loans of at least $2 million. 

The Act authorizes the Administrator [of the SBA] to 

establish limits on agent fees. The Administrator, in 

consultation with the Secretary [of the Treasury], 

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. 

85 Fed. Reg. at 20,816. 

The First IFR does not state that lenders must pay agent fees regardless of 

whether the agent has been authorized by the lender. Rather, it speaks to what an 

agent “may collect from the lender.” Id. (emphasis added). 

On April 22, 2020, shortly after the First IFR was released, the American 

Institute of Certified Public Accountants (“AICPA”) released a special report on 

the PPP confirming that interpretation of the IFR. See Ex. A, AICPA, Small 

Business Loans Under the Paycheck Protection Program: Issues Related to CPA 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 4 of 30
5 

Involvement (Apr. 22, 2020) (“AICPA Report”). The report advised that “CPAs 

should note, that even though the Treasury has outlined guidelines related to 

agency fees, there is a possibility that you will not be paid for your services, even 

when noting you are an agent to the application. . . . It is important to discuss this 

issue with clients and the banks to ensure there is an understanding, preferably in 

writing, as to how and when any fees will be paid.” Id. at 3 (emphasis added). 

In the Act and the First IFR, Congress and the SBA were focused on 

putting a cap on agents’ fees and ensuring that borrowers did not pay them—that 

is all, as the AICPA report implicitly acknowledges. 

II. S&W Claims It Helped Its Client Apply for a PPP Loan and Is 

Therefore Entitled to Part of ServisFirst’s Fee 

S&W alleges that, on April 2, 2020, it was asked by one of its small 

business clients, “Borrower R,” to assist it in applying for a PPP loan. Am. 

Compl. ¶ 81. It also alleges that “Each Borrower agreed to pay Sport & Wheat—

its longtime accounting firm on other matters—for the value of its time spent in 

PPP transactions.” Id. at ¶ 68. 

S&W alleges further that “[b]etween April 2, 2020 and April 7, 2020, Sport 

& Wheat prepared, signed as PPP Agent, hand-delivered, and e-mailed to 

Borrower R and ServisFirst different iterations of the PPP loan application and 

supporting documents.” Id. at ¶ 86. On that basis, S&W alleges that ServisFirst 

was aware that Borrower R was working on the application.” Id. at ¶ 87. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 5 of 30
6 

S&W alleges that ultimately, on April 7, 2020, “Borrower R filed its PPP 

loan application through ServisFirst’s portal using the information and 

documents that Sport & Wheat had prepared.” Id. at ¶ 88. And, on or about 

April 10, 2020, ServisFirst funded the requested loan for Borrower R. Id. at ¶ 

89. 

S&W contends that, because ServisFirst was aware that it was assisting 

Borrower R in making a PPP loan application, once the loan was funded, 

ServisFirst was required to pay it a portion of its statutory reimbursement fee. 

Id. at ¶ 91. Importantly, however, S&W does not allege that it sought 

authorization from ServisFirst to do any work, that ServisFirst authorized it to 

do any work, or that ServisFirst agreed to compensate it for doing any work. 

LEGAL STANDARD 

“[T]o survive a motion to dismiss, a complaint must . . . contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) 

(quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals 

of the elements of a cause of action, supported by mere conclusory statements,” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), or a “formulaic recitation of the 

elements of a cause of action,” Twombly, 550 U.S. at 555, are insufficient. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 6 of 30
7 

When plaintiffs “have not nudged their claims across the line from conceivable 

to plausible, their complaint must be dismissed.” Id. at 570. 

ARGUMENT

This Court should dismiss the Amended Complaint because it contradicts 

the plain language of the CARES Act. Under 15 U.S.C. § 636 (a)(36)(P)(i), 

ServisFirst is entitled to a fee, in the amount of $4,708.25, see id. at ¶ 90, as 

reimbursement for its efforts in processing the PPP loan of Borrower R. 

ServisFirst has no duty to share that fee with anyone, and S&W is not entitled to 

any portion of it. S&W cannot escape this reality no matter what legal label it 

puts on its assertion. S&W is not entitled to declaratory relief (Count Four) 

because the plain language of the CARES Act does not require a lender to pay 

agent fees, and even if it did, there is no private right of action for failure to do 

so. Further, S&W’s unjust enrichment claim (Count One), contract implied in 

law claim (Count Two), and conversion claim (Count Three) all fail to state a 

claim under Florida law. 

I. The CARES Act and Its Regulations Create No Affirmative 

Entitlement for Agents That Assist PPP Applicants.1

1

 In this and the following section of its Motion and Memorandum, ServisFirst has 

adopted the arguments put forth in Defendant Synovus Bank’s Motion to Dismiss 

the Amended Complaint and Memorandum of Law in Support Thereof. See Doc. 

46. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 7 of 30
8 

The plain language of the CARES Act bars S&W’s claims. See Lamie v. 

United States Tr., 540 U.S. 526, 534 (2004) (“It is well established that when the 

statute’s language is plain, the sole function of the courts . . . is to enforce it 

according to its terms.”). This is because the Act creates a reimbursement fee for 

lenders, in specific amounts depending on the loan size, and it says nothing about 

lenders being required to share that fee with anyone else. Conversely, the Act 

merely directs the SBA to establish a limit on agent fees. The deliberate difference 

in statutory language between what lenders “shall [be] reimburse[d]” and what 

agents “may not collect” is striking. See In re Failla, 838 F.3d 1170, 1176–77 

(11th Cir. 2016) (“The presumption of consistent usage instructs that ‘[a] word or 

phrase is presumed to bear the same meaning throughout a text’ and that ‘a 

material variation in terms suggests a variation in meaning.’” (quoting Antonin 

Scalia & Bryan A. Garner, Reading Law 170 (2012)). While S&W would like the 

Act to say that “agents shall be compensated by lenders,” it does not, and S&W 

cannot rewrite the statute to create an entitlement that Congress rejected. 

B. The First IFR Does Not Create an Entitlement to Agent 

Fees. 

1. The Plain Language of the First IFR Creates No 

Entitlement to Agent Fees. 

Unable to find any support in the CARES Act itself, S&W contends that the 

First IFR “entitled [it] to fees” paid by lenders, even absent lender authorization. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 8 of 30
9 

Am. Compl. ¶¶ 112, 189. In short, it does not. Rather, the First IFR (1) sets out a 

schedule of maximum fees “an agent may collect” for assistance in preparing an 

application for a PPP loan, and (2) states that if such fees are paid, they are to be 

paid out of the fees the lender receives from the SBA. 85 Fed. Reg. 20,815 

(emphasis added). Nothing in the rule requires a lender to pay agents’ fees. It is 

only a limitation on the amount and source of agent fees. 

Moreover, the First IFR cannot create an entitlement that does not exist in 

the Act itself. See Love, 310 F.3d at 1352–53; see also Lyng v. Payne, 476 U.S. 

926, 937 (1986) (“[A]n agency’s power is no greater than that delegated to it by 

Congress.”). Instead, the rule must be read in a way that is consistent with its 

empowering statute. See Sec’y of Labor, Mine Safety & Health Admin. v. W. FuelsUtah, Inc., 900 F.2d 318, 320 (D.C. Cir. 1990). Here, neither the Act nor the 

informal rule creates an entitlement to agent fees. 

2. Existing SBA Regulations Confirm There Is No 

Entitlement to Agent Fees. 

Existing SBA regulations confirm there is no entitlement to agent fees. The 

First IFR makes clear that the 7(a) background regulations are applicable, see id. at 

20,815, and S&W agrees that the PPP regulations must be read in the context of 

the existing 7(a) regulatory scheme. See Am. Compl. ¶¶ 43, 65–67. 

The SBA does not require borrowers or lenders to use agents in connection 

with 7(a) loans. Indeed, borrowers and lenders may “conduct business with SBA 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 9 of 30
10 

without a representative.” 13 C.F.R. § 103.2(a). But when agents are used, the 

SBA regulations dictate who may pay the fee. The background regulations 

governing the 7(a) loan program recognize three categories of agents: (1) lender 

service providers, who work for the lender and are paid by the lender; (2) 

“packagers,” “who prepare[] the Applicant’s application for financial assistance 

and [are] employed and compensated by the Applicant”; and (3) loan brokers, who 

intermediate between lenders and borrowers and can be paid by either the lender or 

the borrower, but not both. See 13 C.F.R. § 103.1(a). 

The agents referred to in the CARES Act and the First IFR are akin to the 

“packagers” who are, by preexisting regulation, “compensated by the Applicant.” 

See id. To be sure, the First IFR varies that rule by requiring such agents to be 

paid, if at all, by the lenders. And just as § 103.1(a) does not create an affirmative 

obligation of borrowers to use or pay “packagers,” the First IFR imposes no such 

obligation on lenders. 

Section 103.1(a) also requires that an agent, whether of a lender or a 

borrower, be an “authorized representative.” Id. As S&W concedes, ServisFirst 

clearly communicated that it was not compensating agents, id. at ¶ 93, and did not 

enter into any agreement authorizing S&W to serve as an agent on a PPP 

application. Therefore, S&W was never “authorized” under § 103.1(a) as required. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 10 of 30
11 

S&W’s theory that an agent is entitled to compensation by the lender so long as the 

borrower “agrees to hire a PPP agent,” id. ¶ 65, has it exactly backwards.2 

S&W’s claim of entitlement to fees is also contrary to 7(a) loan program 

agent certification requirements. To ensure that agents are properly authorized and 

have performed the services claimed, agents must disclose and certify their 

services to the SBA. See 13 C.F.R. § 103.5(a). This certification is embodied in 

SBA Form 159, the “Fee Disclosure and Compensation Agreement,” which “must 

be completed and signed by the SBA Lender and Applicant whenever an Agent is 

paid by either the Applicant or the SBA Lender in connection with the SBA loan 

application.” SBA Form 159 (rev. Apr. 2018).3 Form 159 also requires the lender 

to certify that “representations of services rendered and the amounts charged as 

identified in this form are reasonable and satisfactory to it.” Id.; see also 13 C.F.R. 

§ 103.5(b) (requiring that total compensation charged by an agent be reasonable). 

S&W agrees that Form 159 “must” be submitted as a precondition to agent 

compensation. See Am. Compl. ¶ 65. But S&W does not allege that the form was 

2 Reading the First IFR as S&W suggests would upend long-established agency 

law which does not recognize “involuntary agency.” An agency relationship can 

only arise where the principal “manifests assent” through words or conduct that 

an agent can act on its behalf. See Restatement (Third) of Agency §§ 1.01, 1.03 

(2006). 

3 Available at https://www.sba.gov/document/sba-form-159-fee-disclosurecompensation-agreement. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 11 of 30
12 

ever submitted here, or that ServisFirst certified its services. S&W’s contention 

that lenders must compensate unauthorized agents is at odds with the lender’s 

obligation to certify that the agent’s services were “reasonable and satisfactory.” 

See id.; see also 13 C.F.R. § 103.5(b).

3. Explicit Agreements Between Lenders and Agents 

Are Necessary to Address Contingencies Associated 

with SBA Payments. 

An explicit agreement between lender and agent, as contemplated by the 

authorization requirement in the 7(a) regulations, is also necessary to address 

contingencies specific to the SBA’s review of PPP applications and the potential 

clawback of lenders’ processing fees. The SBA may review any PPP loan at any 

time in its discretion. See Loan Review Procedures IFR, 85 Fed. Reg. at 33,012. 

In connection with that review, the SBA may claw back the lender processing fee 

if it determines the borrower is ineligible. See id. at 33,014. The SBA may also 

claw back the processing fee if the lender fails to abide by PPP rules. See id. 

Absent an explicit agreement between lenders and agents addressing such 

contingencies, lenders would have no ability to recover an agent fee paid out of 

funds clawed back by the SBA—even in circumstances where the agent is 

responsible for the borrower’s ineligibility. Neither Congress nor the SBA could 

have intended such an inequitable result. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 12 of 30
13 

4. S&W’s Interpretation of the First IFR Would Lead to 

Fraud and Abuse. 

Automatic payment by lenders to any agent that claims to have assisted a 

borrower would lead to fraud and abuse. If a lender is required to compensate an 

agent, regardless of clear statutory language to the contrary and regardless of 

whether the lender has certified in Form 159 that the services were “reasonable and 

satisfactory,” there is no control over the quality of the services rendered or the 

appropriateness of the fee charged—or even whether the purported services were 

provided at all. S&W’s apparent contention that the agent may certify its own 

services, Am. Compl. ¶ 65, makes no sense and runs counter to the SBA’s longheld concerns about agent-fee fraud and the fact that SBA has consistently pointed 

to Form 159 as a safeguard against such fraud. See, e.g., SBA, Off. of the 

Inspector Gen., Report on the Most Serious Management and Performance 

Challenges Facing the Small Business Administration in Fiscal Year 2019, at 8, 9 

(Oct. 11, 2018) (“OIG investigations have revealed a pattern of fraud by loan 

packagers and other for-fee agents in the 7(a) Loan program, involving hundreds of 

millions of dollars.”).4 

4 Available at https://www.sba.gov/sites/default/files/2019-08/SBA-OIG-Report19- 012.pdf. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 13 of 30
14 

Such a scheme would also upend the typical SBA practice of permitting 

lenders to choose the agents with whom they wish to associate, again, in part, to 

guard against fraud. See SBA Info. Notice No. 9000-1793, SBA, Off. of the 

Inspector Gen. (Apr. 7, 2009) (outlining lender guidelines “[t]o protect against a 

potentially corrupt loan agent”).5

 In sum, the notion that lenders must simply 

accept and compensate any demand for payment by anyone who claims to have 

been an agent is contrary to the regulatory scheme and the SBA’s historical 

concerns about agent fraud. 

5. The Common Law Confirms there is No Entitlement 

to Agent Fees. 

Finally, mandating payment of all claimed agent fees would upend settled 

common law. By expressly requiring a written agreement, the SBA makes agent 

compensation a question of contract. It is well-established that “[t]here can be 

no contract without the mutual assent of the parties.” Utley v. Donaldson, 94 U.S. 

29, 47 (1876); see Restatement (Second) of Contracts § 17 (1981) (“[T]he 

formation of a contract requires a bargain in which there is a manifestation of 

mutual assent to the exchange and a consideration.”). The agreement is what 

creates the payment obligation: “it is inferred that a person promises to pay for 

5 Available at https://www.sba.gov/document/information-notice-9000-1793-

detecting- fraud-small-business-administration-lending-programs. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 14 of 30
15 

services which he requests or permits another to perform for him as his 

agent.” Restatement (Second) of Agency § 441 (emphasis added). 

By contrast, “one has no duty to pay for services officiously rendered 

without request although resulting in benefit to him.” Id.; accord Restatement 

(First) of Restitution § 2 (1937). “A person is not required to deal with another 

unless he so desires.” Id. Thus, “ordinarily, a person should not be required to 

become an obligor unless he so desires.” Id.

The SBA’s preexisting regulations reflect these common law principles. As 

discussed above, the SBA generally recognizes three kinds of agents: (1) lender 

service providers, who work for and are paid by the lender; (2) “packagers,” who 

are “employed and compensated by the Applicant”; and (3) loan brokers, who 

“may be employed and compensated by either the Applicant or the SBA 

Lender.” 13 C.F.R. § 103.1(a). In each case, the payor requests or agrees to the 

agent’s services. 

S&W has not shown—and cannot show—that the CARES Act or any related 

regulations displace these common law rules. The Supreme Court has required 

that “[i]n order to abrogate a common-law principle, the statute must ‘speak 

directly’ to the question addressed by the common law.” United States v. Texas, 

507 U.S. 529, 534 (1993). Even then, courts construe statutes in derogation of the 

common law strictly and narrowly. See Inland Dredging Co. v. Panama City Port 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 15 of 30
16 

Auth., 406 F. Supp. 2d 1277, 1283 (N.D. Fla. 2005) (holding that statutes that are 

in derogation of the common law must be strictly construed). 

 There is no language in the CARES Act that “speaks directly” to common 

law rules. Instead, it simply directs the SBA to establish “limits” on agent fees. 

See 15 U.S.C. § 636(a)(36)(P)(ii). And the regulations, for their part, merely 

provide that PPP agents will be paid, if at all, by lenders. Thus, under settled 

common law and the pre-existing regulations, the only PPP agents entitled to 

compensation are those who lenders have agreed to pay. 

II. The CARES Act Does Not Provide a Private Right of Action. 

Even if the S&W claims did not conflict with the plain language of the 

CARES Act, the Act provides neither an express nor implied right of action for 

private parties to bring suit. “[P]rivate rights of action to enforce federal law must 

be created by Congress.” Alexander v. Sandoval, 532 U.S. 275, 286 (2001). 

Absent “[s]tatutory intent” to create a private remedy, “a cause of action does not 

exist and courts may not create one.” Id. 

S&W does not allege that the CARES Act contains an express private right 

of action, nor could it. See Profiles, Inc. v. Bank of Am. Corp., No. SAG-20-0894, 

2020 WL 1849710, at *7 (D. Md. Apr. 13, 2020) (“[T]he CARES Act does not 

expressly provide a private right of action.”). The Amended Complaint concedes 

this by seeking a ruling under the Declaratory Judgment Act. See Am. Compl. ¶ 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 16 of 30
17 

187. But the Declaratory Judgment Act does not create a private right of action 

either. See, e.g., Rebuild Nw. Fla., Inc. v. Fed. Emergency Mgmt. Agency, No. 

3:17-cv-441-MCR-CJK, 2018 WL 7351690, at *1 (N.D. Fla. July 12, 2018) (citing 

Musselman v. Blue Cross & Blue Shield of Ala., 684 F. App’x 824, 829 (11th Cir. 

2017)). Because no express private right of action exists under the CARES Act, 

“the burden rests with [plaintiff] to establish that an implied private right of action 

exists.” McCulloch v. PNC Bank Inc., 298 F.3d 1217, 1221 (11th Cir. 2002).

S&W fails to meet that burden. In fact, it does not even allege an implied 

private right of action. This is likely because the Eleventh Circuit has repeatedly 

held that the Small Business Act, which the CARES Act amends in limited part, 

does not confer a private right of action. See United States v. Fid. Capital Corp., 

920 F.2d 827, 838 n.39 (11th Cir. 1991); Bulluck v. Newtek Small Bus. Fin., Inc., 

2020 WL 1490702, at *3 (11th Cir. Mar. 27, 2020).6 Nothing in the CARES Act 

changes this analysis, and the only court to address whether the CARES Act itself 

creates a private right of action has held that it does not. See Profiles, 2020 WL 

1849710, at *7.7 

6 Accord Crandal v. Ball, Ball & Brosamer, Inc., 99 F.3d 907, 909 (9th Cir. 1996); 

Searcy v. Houston Lighting & Power Co., 907 F.2d 562, 563–64 (5th Cir. 1990). 

7 See also Order, Profiles, No. 20-1438 (4th Cir. May 1, 2020), ECF No. 27 

(denying plaintiff’s request for an emergency injunction pending appeal). 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 17 of 30
18 

Courts have sometimes looked to four factors to determine the existence of 

an implied private right of action.8 See, e.g., McDonald v. S. Farm Bureau Life Ins. 

Co., 291 F.3d 718, 722 (11th Cir. 2002). The “central inquiry,” however, is 

“whether Congress intended to create, either expressly or by implication, a private 

cause of action.” Id. (quoting Sandoval, 532 U.S. at 286). “[T]he Supreme Court 

has gradually receded from its reliance on [the other] three . . . factors,” which 

“remain relevant only insofar as they provide evidence of whether Congress 

intended to create a private right of action.” Love v. Delta Air Lines, 310 F.3d 

1347, 1351–52 (11th Cir. 2002) (emphasis in original); see also Hernandez v. 

Mesa, 140 S. Ct. 735, 751 (2020) (Thomas, J., concurring) (noting that Sandoval 

rejected the Court’s previous “freewheeling approach” to implying private rights of 

action). 

“[T]he bar for showing legislative intent is high.” Love, 310 F.3d at 1352. 

(quotation omitted). “Congressional intent to create a private right of action will 

not be presumed,” and “[t]here must be clear evidence of Congress’s intent to 

8 The four factors are: (1) whether “the statute create[s] a federal right in favor of 

the plaintiff”; (2) whether there is “any indication of legislative intent, explicit or 

implicit, either to create such a remedy or to deny one”; (3) whether it “is 

consistent with the underlying purposes of the legislative scheme to imply such a 

remedy for the plaintiff”; and (4) whether “the cause of action [is] one traditionally 

relegated to state law.” McDonald, 291 F.3d at 722 (quoting Cort v. Ash, 422 U.S. 

66, 78 (1975)). 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 18 of 30
19 

create a cause of action.” McDonald, 291 F.3d at 722 (quoting Baggett v. First 

Nat’l Bank of Gainesville, 117 F.3d 1342, 1345 (11th Cir. 1997)). 

S&W cannot clear that high bar. The entirety of the section of the CARES 

Act at issue here, captioned “FEE LIMITS,” provides: “An agent that assists an 

eligible recipient to prepare an application for a covered loan may not collect a fee 

in excess of the limits established by the Administrator.” 15 U.S.C. § 

636(a)(36)(P)(ii). Neither this text nor the rest of the statute evince any intent to 

create a private right of action in favor of PPP agents. 

First, the relevant statutory provision does not contain “[r]ights-creating 

language” which confers rights “directly” on PPP agents. See Love, 310 F.3d at 

1352 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 690 n.3 (1979)). 

Rather than creating rights in the agents’ favor, the fee-cap provision prohibits 

certain conduct by agents. A private right of action will not be inferred where, as 

here, the plaintiff is not the intended beneficiary of the statute. See Armstrong v. 

Exceptional Child Ctr., Inc., 575 U.S. 320, 332 (2015) (“We doubt . . . that 

providers are intended beneficiaries . . . of the Medicaid agreement, which was 

concluded for the benefit of the infirm whom the providers were to serve, rather 

than for the benefit of the providers themselves.”). Indeed, the CARES Act does 

not even confer a private cause of action to small business borrowers, who are the 

intended beneficiaries. See Profiles, 2020 WL 1849710, at *7. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 19 of 30
20 

Second, as the recent Profiles decision notes, “the view that Congress did 

not intend to create a separate private right of action in the CARES Act is further 

bolstered by the criminal and civil enforcement regime codified in the SBA.” 2020 

WL 1849710, at *6; see 15 U.S.C. § 650(a)(2), (c) (conferring enforcement 

authority upon the SBA Administrator). Because Congress “provide[d] a 

discernable enforcement mechanism,” that mechanism should not be disturbed by 

implying a private right of action. Love, 310 F.3d at 1353. 

Finally, the First IFR does not and cannot create a private right of action. 

“[I]f examination of a statute’s text, structure, and history does not yield the 

conclusion that Congress intended it to confer a private right and a private 

remedy, . . . such a right may not be created or conferred by regulations 

promulgated to interpret and enforce it[.]” Id. at 1353. In other words, 

“[l]anguage in a regulation may invoke a private right of action that Congress 

through statutory text created, but it may not create a right that Congress has not.” 

Sandoval, 532 U.S. at 291. Because the CARES Act clearly does not reflect 

Congressional intent to confer a private right of action, that ends the inquiry. For 

this reason alone, Count Four of the Amended Complaint must be dismissed. 

III. S&W Fails to State a Claim for Unjust Enrichment or Contract 

Implied in Law. 

S&W’s claims for unjust enrichment (Count One) and contract implied in 

law (Count Two) are duplicative, and both fail. Under Florida law, there is no 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 20 of 30
21 

difference between claims for unjust enrichment and contract implied in law. See 

Monahan v. WHM, LLC, No. 09-80198-CIV, 2010 WL 11504336, at *4 (S.D. Fla. 

Mar. 18, 2010). “To the extent Plaintiffs allege a contract implied in law, such 

contracts must be pled in the same way as unjust enrichment claims[.]” Resnick v. 

AvMed, Inc., 693 F.3d 1317, 1325 n.2 (11th Cir. 2012). 

There are four elements to an unjust enrichment claim (or contract implied 

in law) under Florida law: (1) the plaintiff has conferred a direct benefit on the 

defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has 

accepted or retained the benefit; and (4) the circumstances are such that it would be 

inequitable for the defendant to retain the benefit. Am. Safety Ins. Serv. v. Griggs, 

959 So. 2d 322, 331 (Fla. 5th DCA 2007). Other than threadbare recitals of the 

elements of the cause of action, which are not entitled to the assumption of truth, 

see Iqbal, 556 U.S. at 679, the Amended Complaint fails to plausibly allege 

elements (1), (3), and (4) of an unjust enrichment claim. Moreover, as a matter of 

law, element (4) cannot be met. 

A. S&W Does Not Allege It Conferred a Direct Benefit on 

ServisFirst. 

Florida courts strictly adhere to the requirement that the plaintiff confer a 

direct benefit on the defendant. See Donoff v. Delta Air Lines, Inc., 2020 WL 

1226975, at *12 (S.D. Fla. Mar. 6, 2020); see GVB MD, LLC v. United Healthcare 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 21 of 30
22 

Ins. Co., 2019 WL 5260274, at *4 (S.D. Fla. Aug. 14, 2019) (applying direct 

benefit requirement to claim for unjust enrichment and contract implied in law). 

Here, the Amended Complaint does not allege that S&W conferred a direct 

benefit on ServisFirst. Rather, it alleges that Borrower R asked S&W for 

assistance, Borrower R hired S&W, and Borrower R received S&W’s services. 

Am. Compl. ¶¶ 81-84. Thus, if S&W conferred a direct benefit on anyone, it is 

Borrower R, not ServisFirst. See A & E Auto Body, Inc. v. 21st Century 

Centennial Ins. Co., 2015 WL 12867010, at *5– 6 (M.D. Fla. Jan. 22, 2015) (auto 

repair shop’s work for customers did not confer benefit on insurer, which merely 

incurred an obligation to pay by virtue of its contract with the customers). 

Instead, it is clear from the Amended Complaint that it is the SBA who has 

or will confer a direct benefit on ServisFirst by paying the fee authorized and set 

by Congress to reimburse ServisFirst for its efforts in processing Borrower R’s 

loan. Accordingly, there being no plausible allegation of any direct benefit 

conferred on ServisFirst by S&W, the first element of its unjust enrichment and 

implied contract claims cannot be met and those claims should be dismissed. See 

Johnson v. Catamaran Health Sol., LLC, 687 F. App’x 825, 830 (11th Cir. 2017) 

(dismissing claim where plaintiff paid membership fees to a third party that in turn 

paid a premium to defendant); Peoples’ Nat’l Bank of Commerce v. First Union 

Nat’l Bank of Fla., N.A., 667 So. 2d 876, 879 (Fla. 3d DCA 1996) (claim failed 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 22 of 30
23 

where the alleged payments in which plaintiff claimed an interest were made by a 

third party, not plaintiff); Extraordinary Tile Servs., LLC v. Fla. Power & Light 

Co., 1 So. 3d 400, 403 (Fla. 3d DCA 2009) (dismissing unjust enrichment claim 

based on attenuated relationship between plaintiff and defendant). 

B. S&W Has Not Plausibly Alleged That ServisFirst Accepted 

Any Benefit Conferred by S&W. 

Additionally, S&W has failed to plausibly allege that ServisFirst ever 

accepted any benefit that S&W allegedly conferred on ServisFirst. In Coffee Pot 

Plaza Partnership v. Arrow Air Conditioning and Refrigeration, Inc., for example, 

the court reversed a judgment premised on a theory of unjust enrichment because 

the defendant had not accepted the benefit allegedly conferred. 412 So. 2d 883 

(Fla. Dist. Ct. App. 1982). In that case, the defendant landlord leased space to a 

tenant and allowed the tenant to use certain refrigeration equipment. The tenant 

hired the plaintiff to repair the equipment, but the tenant never paid for the 

work. When the defendant landlord regained the premises upon the tenant’s 

default, the plaintiff sued the landlord on an unjust enrichment theory, arguing that 

the landlord should pay the repair bill. 

Following a judgment in favor of the repair company, the defendant landlord 

appealed, and the appellate court reversed on the basis that the defendant did not 

accept the benefit of the repair work from the plaintiff. See id. at 884. The court 

reasoned, “Here, [the defendant landlord] did not request that Arrow repair and 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 23 of 30
24 

install the refrigeration equipment. Moreover, it cannot be said that [the 

defendant] knowingly and voluntarily accepted the benefits of Arrow’s work since 

it did not come into control of the equipment until after Arrow had completed the 

work and only then because it was forced to terminate [the tenant’s] lease. . . . 

Arrow contracted with [the tenant] to do the work, and it must look to [the tenant] 

for payment.” Id. 

The same analysis applies here to S&W’s threadbare allegations. S&W’s 

relationship, if any, was with its client, Borrower R. S&W concedes that it did not 

have a contract with ServisFirst, and S&W has failed to allege that ServisFirst 

knowingly and voluntarily accepted the benefit of S&W’s work. S&W alleges 

only that it did work and ServisFirst allegedly received a benefit from that work, 

and therefore, ServisFirst should pay S&W. That is not enough to establish a 

plausible claim for unjust enrichment. 

C. ServisFirst’s Actions Are Not Inequitable. 

Plaintiff’s unjust enrichment claim also fails because ServisFirst’s actions 

are not inequitable as a matter of law. This is true for at least two reasons. 

First, Congress explicitly directed that the SBA “shall reimburse a lender 

authorized to make a covered loan . . . .” a specific amount depending on the size 

of the loan. 15 U.S.C. § 636(a)(36)(P)(i) (emphasis added). The word 

“reimburse” has a clear meaning, one that is consistent with the dictionary 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 24 of 30
25 

definition of it. Merriam-Webster defines reimburse as “to pay back to someone” 

or “to make restoration or payment of an equivalent to.” Reimburse, MERRIAMWEBSTER, https://www.merriam-webster.com/dictionary/reimburse (last visited 

June 16, 2020). Similarly, the Cambridge Dictionary defines reimburse as “the act 

of paying back money to someone who has spent it for you or lost it because of 

you.” Reimburse, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/ 

dictionary/english /reimburse (last visited June 16, 2020). As a matter of law, it 

would not be inequitable and ServisFirst cannot be unjustly enriched by retaining a 

fee, the payment of which was directed by Congress for the purpose of paying it 

back for its efforts in processing PPP loans. 

Second, S&W has not and cannot allege that it had a reasonable expectation 

that ServisFirst would pay it any portion of its fee. Indeed, “[a] claim for unjust 

enrichment . . . requires examination of . . . the expectations of the parties to 

determine whether an inequity would result or whether their reasonable 

expectations were met.” Porsche Cars N. Am., Inc. v. Diamond, 140 So. 3d 1090, 

1100 (Fla. 3rd DCA 2014) (emphasis added) (citations omitted). S&W has no 

right to payment of fees under the CARES Act and thus could not have reasonably 

expected that ServisFirst, with whom it had no agreement, would pay it. For this 

reason, too, S&W’s unjust enrichment claim fails as a matter of law. 

IV. S&W Fails to State a Claim for Conversion. 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 25 of 30
26 

For its conversion claim, S&W alleges that “[a] portion of the origination fee 

each Defendant received was the rightful property of [S&W].” Am. Compl. ¶ 183. 

It alleges elsewhere in the Amended Complaint that the fees are “paid directly to 

lenders by the SBA,” id. ¶ 9, 49, and then any agent fees “will be paid” to the agent 

“by the lender.” Id. ¶ 12. These allegations do not amount to conversion, but 

merely a claimed monetary obligation. Conversion is an “act of dominion 

wrongfully asserted over another’s property inconsistent with his ownership 

therein.” United Techs. Corp. v. Mazer, 556 F.3d 1260, 1270 (11th Cir. 2009) 

(emphasis added). 

Money is rarely the proper subject of a conversion claim. It is only when the 

claim is for “specific money capable of identification,” such as a “sum of money 

sealed in an addressed envelope [that was] misdelivered,” Zagar, 243 So. 2d at 

648, which is obviously not the case here. 

A traditional monetary obligation, like the one claimed here, never gives rise 

to a conversion claim under Florida law. Kee v. Nat’l Reserve Life Ins. Co., 918 

F.2d 1538, 1541–42 (11th Cir. 1990); Neelu Aviation, LLC v. Boca Aircraft Maint., 

LLC, 2019 WL 3532024, at *8 (S.D. Fla. 2019); Belford Trucking Co. v. Zagar, 

243 So. 2d 646, 648 (Fla. Dist. Ct. App. 1970) (“A mere obligation to 

pay money may not be enforced by a conversion action.”). 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 26 of 30
27 

For these reasons, the conversion claim in Count Three should also be 

dismissed. 

CONCLUSION

Based on the foregoing, and pursuant to Federal Rule of Civil Procedure 

12(b)(6), Defendant ServisFirst Bank respectfully requests that the Court dismiss 

Plaintiff’s Amended Complaint with prejudice. 

Respectfully submitted this 17th day of June, 2020.

/s/ Logan T. Matthews 

Logan T. Matthews 

Florida Bar No. 1002506 

LIGHTFOOT, FRANKLIN & WHITE, LLC 

The Clark Building 

400 20th Street North 

Birmingham, Alabama 35203 

Telephone: (205) 581-0700 

Facsimile: (205) 581-0799 

One of the Attorneys for Defendant 

ServisFirst Bank 

OF COUNSEL: 

Sara Anne Ford (admitted pro hac vice) 

sford@lightfootlaw.com 

R. Ashby Pate (admitted pro hac vice) 

apate@lightfootlaw.com 

Logan T. Matthews (Florida Bar No. 1002506) 

lmatthews@lightfootlaw.com 

LIGHTFOOT, FRANKLIN & WHITE, LLC 

The Clark Building 

400 20th Street North 

Birmingham, Alabama 35203 

Telephone: (205) 581-0700 

Facsimile: (205) 581-0799 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 27 of 30
28 

 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 28 of 30
29 

LOCAL RULE 7.1(F) WORD LIMIT CERTIFICATION

Pursuant to Northern District of Florida Local Rule 7.1(F), I certify that this 

Motion to Dismiss the Amended Complaint and Memorandum of Law in Support 

Thereof is in compliance with the Court’s word limit. According to the word 

processing program used to prepare this motion and memorandum, the document 

contains 6,259 words, exclusive of the case style, signature block, and this 

certification. 

/s/ Logan T. Matthews 

One of the Attorneys for Defendant 

ServisFirst Bank 

 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 29 of 30
30 

CERTIFICATE OF SERVICE 

 I hereby certify that on this 17th day of June, 2020, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

electronic notification of such filing to all counsel of record. 

/s/ Logan T. Matthews 

One of the Attorneys for Defendant 

ServisFirst Bank 

Case 3:20-cv-05425-TKW-HTC Document 49 Filed 06/17/20 Page 30 of 30