August 11, 2020

Volume X, Number 224

August 10, 2020

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Trending: PPP Agent-Fee Litigation

Paycheck Protection Program litigation is trending in several categories, one of which centers on the payment of agent fees. These litigation trends, tracked on Jones Walker’s PPP Bank Litigation Tracker, reveal key indicators and risk mitigation strategies for the court battles ahead regarding the $659 billion program.

Agent-fee lawsuits have quickly become a fast-growing category of PPP litigation in federal courts across the United States, and are poised for consolidation in multidistrict litigation. Under the PPP, an agent, such as an accountant or a consultant, may assist a lender with originating and preparing a loan application. Agents have filed lawsuits claiming that banks unlawfully withheld fees owed to agents for assisting in the application process. Many agents lacked a clear agreement with banks regarding compensation, and many banks have taken the position that no compensation is due in the absence of a written agreement. Even absent a written agreement, agents have asserted federal law claims for violation of the Coronavirus Aid, Relief, and Economic Security (CARES) Act and the Small Business Administration’s 7(a) loan program, referencing the SBA Interim Final Rule, which establishes the maximum fee an agent may collect from a lender; and the PPP Information Sheet for Lenders (PPP ISL), which provides, in part, that “[a]gent fees will be paid out of lender fees.” Some lawsuits have also asserted state law claims for unfair business practices, violation of consumer protection laws, and unjust enrichment, among others.

One indicator for the direction of agent-fee litigation emerged during the June 30, 2020, hearings before the House of Representatives, when Treasury Secretary Steven Mnuchin clarified that the agent-fee guidance “was intended to be based on a contractual relationship between the agent and the bank.” Secretary Mnuchin also indicated that clarifying guidance on this issue was forthcoming. This signals a Treasury position that may align with that of some banks — that the guidance on agent fees was merely a reference to the permissibility of banks to engage and compensate agents under the SBA 7(a) regulations. As these lawsuits progress, the Treasury’s position may not foreclose agent-fee disputes, particularly where lawsuits have asserted state law claims, but an interpretation of the PPP regulations that requires a contractual relationship for the payment of agent fees may curb the viability of many agent-fee claims.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 198


About this Author

Robert L. Carothers, Jones Walker, Banking Services Lawyer, Financial Regulation Attorney

Rob Carothers is a partner in the firm's Banking & Financial Services Practice Group. His practice is focused primarily in the area of financial institution regulation. He has experience advising state banks, national banks, thrifts, and their holding companies on a wide range of regulatory matters, including:

  • Affiliate transactions and compliance with Sections 23A and 23B of the Federal Reserve Act and Regulation W and Anti-Tying Rules

  • Applying for CDFI status

  • ...
Graham Ryan Litigation Attorney Jones Walker Law Firm

Graham Ryan is a partner in the Litigation Practice Group. Graham resolves complex business disputes through civil litigation and appeals in federal and state courts for a diverse group of clients spanning numerous industries. He serves on the boards of numerous organizations.

Graham concentrates his practice on commercial civil litigation in federal and state courts, and has extensive experience in Louisiana substantive and procedural law and appeals. He has cross-industry litigation experience in the areas of business disputes, breach of contract, torts, real estate and construction, banking and financial services litigation, and other areas of complex commercial litigation. Graham represents a cross-industry regional and national client base that spans banking, healthcare, construction, and energy. In addition to his trial and appellate practice, Graham has developed a focus on pre-trial strategy and resolution and has successfully resolved many complex cases through summary judgment and dispositive relief in advance of trial.

Graham is an active member of the legal profession and the community at the local, statewide, and national levels. He has served on the board of numerous professional organizations, including the Louisiana State Law Institute, the American Bar Association YLD, the Louisiana Bar Association YLD, the New Orleans Association of Defense Counsel, and the Jefferson Parish Bar Association YLD. He was elected to represent Louisiana in the American Bar Association House of Delegates, which establishes national policy on issues pertaining to the legal professional and the public. He was named a Fellow of the Louisiana Bar Foundation and has served as the Louisiana Delegate to US Fifth Circuit Judicial Conference. Graham also served as co-chair of the Litigation Committee for the American Bar Association YLD, the largest young lawyer organization in the world with more than 150,000 members.

In his community, Graham is past chairman of HandsOn New Orleans, a nonprofit volunteer center formed in the wake of Hurricane Katrina that has engaged more than 60,000 volunteers to rebuild southern Louisiana. He was also chair of Barristers for Boards, a collaboration with the United Way to train and place lawyers on the boards of directors of Louisiana nonprofits. Graham serves as a volunteer attorney to the homeless and veteran population in New Orleans through Project H.E.L.P. (Homeless Experience Legal Protection) and volunteers with The Pro Bono Project. He was named a fellow of the Loyola Institute of Politics and is a graduate of several leadership institutes.