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Gregory is a partner in Balch & Bingham’s Birmingham office and serves as chair of the Financial Services Litigation Practice Group.  His practice centers on commercial litigation, with a concentration on complex litigation. Since joining Balch & Bingham LLP in 1991, Mr. Cook has focused his practice in the area of business and financial services litigation, including concentrating on class action defense (he has been involved in defending over 60 class actions). More recently, Mr. Cook has defended a number of actions and class actions arising out of the mortgage and subprime crisis, including matters for loan servicers, lenders, title insurance agents and settlement services providers. Mr. Cook is listed in Best Lawyers in commercial litigation, has been rated "AV" by Martindale Hubbell and was selected by Super Lawyers in Business Litigation.

Earlier this year, Balch & Bingham reported on the dismissal of one of the first class actions challenging financial institutions for charging multiple “overdraft” or not sufficient funds (“NSF”) fees for the same transaction or “item.” In these cases, Plaintiffs allege financial institutions may only charge an overdraft fee once for each “item” – be it a debit, check, draft, withdrawal, ACH payment request, etc. – no matter how many times merchants represent the transaction or item to the bank for payment. Last week, the Tennessee Court of Appeals became the first appellate court to affirm the dismissal of one of these cases.
Continue Reading Tennessee Court of Appeals Becomes First Appellate Court to Affirm Dismissal of Class Action Challenging Multiple “Overdraft” or NSF Fees for Same Transaction or “Item.”

The federal courts have been struggling for several years to clarify Article III standing law. Is it enough that a plaintiff satisfy the elements of a federal consumer protection statute? Is it enough that a data breach have happened? Or, must the plaintiff show that they have actually been damaged or that there is a substantial risk that they will be damaged? On October 28, 2020 the Eleventh Circuit handed down a sharply split en banc decision applying the U.S. Supreme Court’s Article III standing decision, Spokeo Inc. v. Robins, 136 S. Ct. 1540 (2016). The court held directly held that it is not enough that a statutory violation have occurred. Even though defendant Godiva Chocolates violated the Fair and Accurate Credit Transactions Act (“FACTA”), the Court held that the named class plaintiff lacked standing to bring the action because he did not allege any concrete injury.

Continue Reading Giving Teeth to Article III Standing Requirements in the Eleventh Circuit.

Earlier this year, Balch & Bingham reported on the wave of “Agent Fee” class actions against lenders who made PPP loans under the CARES Act. At one point, there were over sixty such lawsuits, spread across the federal courts, alleging that banks were required to pay CPAs and others who assisted borrowers with loan applications.  Since then, however, virtually every ruling has been in favor of the banks, and now there is real reason to question whether these suits will continue.

Continue Reading RETREAT! “Agent Fee” Class Actions Moving Against Plaintiffs

In a landmark decision Monday, the United States District Court for the Northern District of Florida dismissed a putative class action involving “agent fees” for Paycheck Protection Program (“PPP”) loans under the federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act. This lawsuit, Sport & Wheat CPA, PA v. Servisfirst Bank et al., No. 3:20-cv-05425-TKW-HTC (N.D. Fla.) claimed to represent a class of accounting firms and other consultants that allegedly worked as agents on behalf of applicants for PPP loans – typically small business clients. Plaintiff contended the CARES Act and implementing regulations required lenders to pay them “agent fees” for preparing loan applications.

Continue Reading Florida Judge Dismisses First-Filed PPP Agent Fee Class Action, Holds the CARES Act Contains No Requirement Agents be Paid

On Wednesday, the Judicial Panel on Multidistrict Litigation rejected consolidation of 62 class actions involving Paycheck Protection Program (“PPP”) loans under the federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in a multidistrict litigation (“MDL”).  These actions claim to represent a class of accounting firms (and other consultants) that allegedly worked as agents on behalf of applicants for PPP loans – typically small business clients. Plaintiffs contend the CARES Act and implementing regulations require lenders to pay them “agent fees” for preparing loan applications.

Continue Reading Lenders Gain Big Win Resisting MDL Consolidation in PPP Agent Fees Class Action Litigation

In In Re: Bay Circle Properties, LLC., No. 1812536, 2020 WL 1696303 (Ala. April 8, 2020), the Eleventh Circuit dismissed an appeal by a guarantor alleging a wrongful foreclosure, because the guarantor did not own the foreclosed property and therefore lacked Article III standing.  Here are the facts:  Debtor owed for two loans,

At least two class actions filed in the wake of the COVID-19 pandemic by disgruntled accounting firms allege some of the nation’s largest banks never paid “agent fees” to entities assisting small businesses apply for Paycheck Protection Program (“PPP”) loans under the federal Coronavirus Aid, Relief, and Economic Security (“CARES”) Act – and never intended to.

These lawsuits allege plaintiffs represent a class of financial services and accounting firms that prepared PPP applications on behalf of eligible small business clients. Plaintiffs contend the CARES Act and implementing regulations require lenders to pay them “agent fees” for preparing loan applications. Fees are calculated by tiers according to the amount of the loan – a one percent fee for loans of $350,000 or less, a .50 percent fee for loans of more than $350,000 and up to $2 million, and a .25 percent fee on loans over $2 million.


Continue Reading Second Wave of CARES Act Litigation Filed Against Banks; Accounting Firms Seek “Agent Fees” for Preparing PPP Loan Applications.

In Forbes v. Platinum Mortgage, Inc., No. 1180985, 2020 WL 746533 (Ala. Feb. 14, 2020), the Alabama Supreme Court upheld the validity of a home mortgage.  There, the husband borrowed $175,000, securing the loan with a mortgage on the couple’s home.  The husband signed the mortgage for himself and signed on behalf of his wife – pursuant to a Power of Attorney from his wife.  Later, the wife was declared incompetent and ultimately died.  The conservator sued, seeking to nullify the loan and contending that the Power of Attorney was forged.

Continue Reading A Properly Notarized Power of Attorney Provides Authority to Execute Mortgages

In Williams v. First Advantage LNS Screening Solutions, Inc., 947 F.3d 735 (11th Cir. Jan. 9, 2020), the plaintiff recovered a jury verdict under the FCRA for $250,000 of compensatory damages and $3.3 Million of punitive damages.  The defendant was a criminal background report provider.  Because of various mistakes and procedures, the plaintiff’s information was mismatched and inaccurately lead potential employers to believe he had a criminal background.  Liability was asserted primarily under 15 U.S.C. § 1681e(b), which requires CRAs to follow “reasonable procedures to ensure maximum possible accuracy.”

Continue Reading Eleventh Circuit Affirms FCRA Punitive Damage Award But Reduces Ratio to 4:1

In a flurry of new class actions filed on behalf of unhappy small business owners, banks are facing suits alleging they unlawfully prioritized processing large loans under the Paycheck Protection Program (PPP) over smaller ones. Two parallel class actions were filed on April 19, 2020 and April 20, 2020 in California federal court accusing two large banks of reshuffling loan applications instead of processing them on a first-come, first-served basis to purportedly maximize the banks’ profit from the federal loan program. Another similar class action was filed in state court in Texas. The class plaintiffs include a frozen yogurt shop, an auto body shop and a flooring company among others.

Continue Reading Banks Beware: New Class Actions Alleging Banks Prioritized Large PPP Loans Over Smaller Ones