16.   The CARES Act is the largest economic relief bill in U.S. history and will allocate  $2.2 trillion in support to individuals and businesses affected by the coronavirus pandemic and  economic downturn.   17.  As part of the relief provided, the CARES Act expands the eligibility criteria for  borrowers to qualify for loans that are available through the SBA by adding the PPP to the SBA’s  gamut of loan programs.    18.  The PPP provides federally-guaranteed loans up to a maximum amount of $10  million to eligible businesses, which can be conditionally forgivable, to encourage businesses to  retain employees through the COVID-19 crisis by assisting in the payment of certain operational  costs.  To accommodate for this SBA expansion, the CARES Act has authorized commitments to  the SBA 7(a) loan program, as modified by the CARES Act, in the amount of $349 billion.   20.  The SBA’s interim final rule on the PPP provides the following information as to  who is eligible for a PPP loan:  You are eligible for a PPP loan if you have 500 or fewer employees  whose principal place of residence is in the United States, or are a  business that operates in a certain industry and meet the applicable  SBA employee-based size standards for that industry, and:   i.  You are:  A.  A small business concern as defined in section 3 of the Small  Business Act (15 USC 632), and subject to SBA’s affiliation rules  under 13 CFR121.301(f) unless specifically waived in the Act;     B.  A tax-exempt nonprofit organization described in section  501(c)(3) of the Internal Revenue Code (IRC), a tax-exemptveterans  organization described in section 501(c)(19) of the IRC, Tribal  business concern described in section 31(b)(2)(C) of the Small  Business Act, or any other business; and     ii.  You were in operation on February 15, 2020 and either had  employees for whom you paid salaries and payroll taxes or paid  independent contractors, as reported on a Form 1099-MISC.  You  are also eligible for a PPP loan if you are an individual who operates  under a sole proprietorship or as an independent contractor or  eligible self-employed individual, you were in operation on  February 15, 2020.  You must also submit such documentation as is  necessary to establish eligibility such as payroll processor records,  payroll tax filings, or Form 1099-MISC, or income and expenses  from a sole proprietorship.  For borrowers that do not have any such  documentation, the borrower must provide other supporting  documentation, such as bank records, sufficient to demonstrate the  qualifying payroll amount.     13 CFR Part 120, pp. 5-6.    22.  At 8:42 am on Friday, April 3, 2020 – the opening day of PPP loans – Treasury  Secretary Steven Mnuchin tweeted that community banks “have already processed over 700 loans”  for a total of $2.5 million. Hugh Son & Dawn Giel, Bank of America’s Small Business Loan Portal  is Up, But Most Banks are having Trouble, CNBC (Apr. 3, 2020) [hereinafter “Hugh Son”],  available at https://www.cnbc.com/2020/04/03/bank-of-americas-small-business-loan-portal-is- up-making-it-the-first-bank-to-accept-applications.html (last accessed Apr. 3, 2020).   23.  BOA announced on the morning of April 3, 2020, that it was accepting online  applications for the Government’s $349 billion PPP, becoming the first major bank to do so.  See  Hugh Son.     25.  BOA’s PPP loan portal went live at about 9 am ET Friday. See Hugh Son.  Within  an hour, the bank had 10,000 applications for loans.  Id.   26.  Profiles is a “small business” as defined under the SBA guidelines, and qualifies as  an eligible applicant for a PPP loan.   27.  Profiles is a private banking client of BOA, maintaining a depository relationship  with BOA, including Profiles’ primary checking account and other operational accounts.   28.  Profiles is not a current borrower of funds from BOA.   29.  In light of the COVID-19 pandemic and the current financial climate, Profiles  attempted to apply for a PPP loan from BOA.   30.  However, when Profiles tried to apply for a PPP loan from BOA on the morning of  April 3, 2020, Profiles was electronically denied access to an application.  The denial flagged the  fact that Profiles did not have a preexisting lending relationship with BOA.     31.  Confused and distraught, Amy Elias (“Ms. Elias”), owner of Profiles, immediately  contacted Marie Conley (“Ms. Conley”), Vice President, Bank of America, Preferred & Small  Business Banking, Baltimore Metro Market, via email about BOA refusing to even allow her to  apply for a PPP loan.     32.  Ms. Conley responded, “Amy, I’m so sorry!!!!! I just got the news today on my  conference call.  I can imagine how devasted you must be.  I’m trying to find out where else you  can go to get money.  Get back to you later.”   34.  In disbelief, Ms. Elias wrote back, “I can not [sic] believe this.”  Ms. Conley replied,  “I know. . . . I’m very disappointed too.”   35.  Nothing in the PPP federal law allows for the differentiation of a small business  loan under the federal program between a bank’s depository clients and their lending clients.  And,  nothing in PPP federal law allows for BOA to determine who can participate in the federal program  based on that improper criteria.     36.  The purpose and motivation behind BOA’s discriminatory practice is transparent.   In light of the fact that PPP is a limited funding program, BOA has decided to prioritize its balance  sheet by supporting preexisting loans issued by BOA through the PPP program at the expense of  small businesses that do not have a lending relationship with BOA.  Had Congress intended to  allow banks, like BOA, to limit access to the PPP funding program to only those small businesses  that had a borrowing relationship with the bank, Congress would have said so.  The purpose,  however, of the PPP law is to assist all small business who qualify under the SBA rules and to  provide equal access to those funds.   38.  Indeed, Senator Marco Rubio criticized BOA for its decision, saying via Tweeter,  “The requirement that a #SmallBusiness not just have a business account but also a loan or credit  card is NOT in the law we wrote & passed or in the regulations.”  See Hugh Son:   40.  Named Plaintiff incorporates each and every allegation contained in the preceding  paragraphs by reference as if fully set forth herein.   41.  Named Plaintiff, in accordance with Fed. R. Civ. P. 23(b)(1), (b)(2) and (b)(3),  bring this action on behalf of themselves and as members of the Class defined below.   42.  The Class consists of (a) all individuals or entities who qualify for a loan under the  PPP and (b) who were prevented from even applying for a PPP loan by BOA solely because they  do not have a pre-existing debt relationship with BOA.   43.  The Class is so numerous that joinder of all members is impracticable.  See Fed. R.  Civ. P. 23(a)(1).  The Class consists of individuals and companies, throughout the country.   45.  The claims of Named Plaintiff, which arise out of BOA’s prohibition of qualifying  small businesses to apply for PPP loans with BOA, are typical of the claims of the Class members.   Likewise, Defendants’ defenses to the Named Plaintiff’s claims – both the myriad of legal defenses  that can be anticipated, together with the factual defenses – are typical of the defenses to the Class  claims.  See Fed. R. Civ. P. 23(a)(3).   46.  The Named Plaintiff will fairly and adequately represent and protect the interests  of the Class.  See Fed. R. Civ. P. 23(a)(4).  The Named Plaintiff is articulate and knowledgeable  about its claims, and fully able to describe them.  There are no conflicts of interest between the  Named Plaintiff with respect to the interests of the Class members.  The Named Plaintiff, like the  Class members, have suffered financial loss as a result of Defendants’ acts.  Named Plaintiff has  sufficient financial resources to litigate this case and further the interests of the Class without  compromising them.   47.  Counsel for the Named Plaintiff are well-suited to represent their interests and the  interests of the Class at large.  Counsel include M. Celeste Bruce, Esq., Alan M. Rifkin, Esq.,  Charles S. Fax, Esq., Liesel J. Schopler, Esq. and Barry L. Gogel, Esq. (Rifkin Weiner Livingston  LLC).  The combined experience and areas of professional concentration of these attorneys are  well-suited to representation of the interests of the Class.  All these lawyers practice complex civil  litigation and are experienced in class action litigation.           49.  Class certification is appropriate under Fed. R. Civ. P. 23(b)(2).  BOA will continue  to commit the violations alleged, and the members of the Classes and the general public will  continue to be unfairly denied access to critical relief that they are entitled to under the CARES  Act’s PPP.  BOA has acted and refused to act on grounds that apply generally to the Class so that  final injunctive relief and corresponding declaratory relief is appropriate respecting the Class as a  whole.     50.  Class certification is also appropriate under Fed. R. Civ. P. 23(b)(3).  The questions  of law or fact common to the members of the Class, described above, predominate over any  questions affecting only individual members.     51.  Due to the individual amount at issue as to each Class member, as well as the cost  and difficulty in litigating each case separately, the Class members have insufficient interest in  individually controlling the prosecution of separate actions.  See Fed. R. Civ. P. 23(b)(3)(A).   52.  The Class has not previously litigated the claims asserted in this complaint.  See  Fed. R. Civ. P. 23(b)(3)(B).     53.  This Court is an appropriate forum for the litigation of the Class claims.     54.  Any difficulties that might be incurred in the management of this class action are  insubstantial.  See Fed. R. Civ. P. 23(b)(3)(D).  55.  Named Plaintiff incorporates each and every allegation contained in the preceding  paragraphs by reference as if fully set forth herein.   57.  There is an implied cause of action arising under the CARES Act.   58.  The CARES Act, along with the SBA’s interim final rule on the PPP, provides the  sole eligibility requirements to apply for a PPP loan.   59.  The purpose of the CARES Act’s PPP is to assist all entities and individuals who  qualify and to provide equal access to those funds.   60.  In flagrant disregard for law, BOA has decided to protect itself through the PPP  program – rather than intended entities and individuals – by creating an unnecessary requirement  to apply for a PPP loan from it – a lending relationship with BOA.    61.  Profiles met the eligibility requirements for a PPP loan.  Nevertheless, BOA refused  to allow Profiles to apply for a PPP loan because it did not have a lending relationship with BOA.    62.  As a direct and proximate result of BOA’s wrongful actions, Profiles and Class  members have suffered damages up to $10 million each due their inability to apply for a PPP loan  with BOA despite being eligible therefor.   63.  Named Plaintiff incorporates each and every allegation contained in the preceding  paragraphs by reference as if fully set forth herein.   65.  The PPP is part of the SBA’s 7(a) loan program.     66.  There is an implied cause of action arising under the SBA’s 7(a) loan program.   67.  In flagrant disregard for law, BOA has decided to protect itself through the SBA’s  7(a) PPP program – rather than intended entities and individuals – by creating an unnecessary  requirement to apply for a PPP loan from it – a lending relationship with BOA.    68.  Profiles met the eligibility requirements for a PPP loan.  Nevertheless, BOA refused  to allow Profiles to apply for a PPP loan because it did not have a lending relationship with BOA.    69.  As a direct and proximate result of BOA’s wrongful actions, Profiles and Class  members have suffered damages up to $10 million each due their inability to apply for a PPP loan  with BOA despite being eligible therefor.  70.  Named Plaintiff incorporates each and every allegation contained in the preceding  paragraphs by reference as if fully set forth herein.   71.  There is an actual controversy between Defendants and the Class concerning the  application of the PPP.   72.  Pursuant to 28 U.S.C. § 2201 this Court may “declare the rights and legal relations  of any interested party seeking such declaration, whether or not further relief is or could be sought.”   73.  BOA wrongfully prevented entities and individuals from applying for PPP loans  from BOA, despite meeting all federally-imposed PPP loan eligibility requirements, for lack of a  lending relationship with BOA.   75.  Named Plaintiff and the Class are likely to succeed on the merits of their causes of  action set forth in Counts I-III.   76.  Named Plaintiff and the Class have suffered and will continue to suffer irreparable  harm in the absence of injunctive relief enjoining BOA from depriving Named Plaintiff and the  Class from the rights and benefits bestowed by the CARES Act and its regulations, and do not  have an adequate remedy at law.   77.  BOA will suffer no injury if the preliminary injunctive relief sought by the Named  Plaintiff and the Class is granted.   78.  The public interest will be served by the granting preliminary injunctive relief  sought by the Named Plaintiff and the Class.   Declaratory Judgment and Preliminary and Permanent Injunction   Pursuant to 28 U.S.C. §§ 2201  and 2202  (Against All Defendants)    Violations of the CARES Act, H.R. 748  (Against All Defendants)    Violations of the SBA’s 7(a) Loan Program, 15 U.S.C. 636(a)  (Against All Defendants)   