Transfer Order, MDL No. 2992. Case assigned to District Judge Larry Alan Burns — In re BofA Unemployment Litigation (Dkt. 1)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 1 · 2021-05-21 · Docket on CourtListener

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UNITED STATES JUDICIAL PANEL 
on 
MULTIDISTRICT LITIGATION 
 
 
IN RE: BANK OF AMERICA CALIFORNIA 
UNEMPLOYMENT BENEFITS LITIGATION   
 
 
         MDL No. 2992 
 
 
TRANSFER ORDER 
 
 
 
Before the Panel:∗  Plaintiff in one action (Yick) moves under 28 U.S.C. § 1407 to 
centralize this litigation in the Northern District of California. This litigation currently consists of 
ten actions pending in three districts, as listed on Schedule A.  Since the filing of the motion, the 
Panel has been notified of ten related actions.1   
 
 
Plaintiffs in the other nine actions on the motion and one potential tag-along action (Smith) 
support centralization in the Northern District of California.2  Defendant Bank of America, N.A. 
(“BANA”) opposes centralization in favor of informal coordination. 
 
 
On the basis of the papers filed and the hearing session held,3 we find that these actions 
involve common questions of fact, and that centralization in the Southern District of California 
will serve the convenience of the parties and witnesses and promote the just and efficient conduct 
of this litigation.  These putative class actions present common factual questions arising from the 
allegation that defendant BANA, the entity contracted by California to distribute unemployment 
benefits to eligible recipients, failed to safeguard and properly manage benefits during the 
pandemic and unlawfully froze or denied access to funds in recipients’ debit card accounts.  
Common factual questions include: (1) the nature of BANA’s relationship with the California 
Employment Development Department (“EDD”) with respect to administering unemployment 
benefits and responding to claims of fraud; (2) BANA’s policy and practices for responding to 
fraud reports from recipients of EDD benefits – in particular, the process for conducting 
 
∗ Judge David C. Norton did not participate in the decision of this matter. 
 
1 These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7.1 
and 7.2. 
 
2 Plaintiffs in one Central District of California action filed a brief opposing centralization, but 
subsequently filed a notice changing their position, stating that they supported centralization in the 
Northern District of California.  See Doc. No. 52, MDL No. 2992 (J.P.M.L. May 21, 2021). 
 
3 In light of the concerns about the spread of COVID-19 virus (coronavirus), the Panel heard oral 
argument by videoconference at its hearing session of May 27, 2021.  See Suppl. Notice of Hearing 
Session, MDL No. 2992 (J.P.M.L. May 10, 2021). 
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investigations in response to error claims; and (3) BANA’s alleged decision to freeze EDD debit 
card accounts on a mass basis in late 2020.  Additionally, nearly all actions share questions of fact 
as to BANA’s data security practices – mainly, BANA’s use of allegedly outdated magnetic stripe 
technology in EDD debit cards instead of microchip technology.  Moreover, the EDD is a named 
defendant in one action and has been identified as a key subject of third-party discovery in all other 
actions.  Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings, 
including with respect to class certification; and conserve the resources of the parties, their counsel, 
and the judiciary. 
 
 
In opposing centralization, defendant principally argues that informal coordination is a 
practicable alternative, as the litigation is limited to claims arising only in California.  We find this 
argument unpersuasive.  There currently are 20 related actions pending in four districts, including 
potential tag-along actions.  Although the actions in the Northern District of California have been 
consolidated under Rule 42, there are still eight actions pending outside of the Northern District, 
and seven competing groups of firms represent the various plaintiffs in this litigation.  The claims 
and proposed classes overlap extensively but with substantive differences that will make informal 
coordination unwieldy.  Plaintiffs anticipate significant discovery on the involved state agency, 
which is a non-party in all actions but one, posing a further obstacle to informal coordination.  
 
 
We also considered whether Section 1404 provides a viable alternative to centralization.  
But no Section 1404 transfer motions are pending and, at oral argument, neither BANA nor 
plaintiffs indicated a willingness to seek transfer of one or more actions under Section 1404 to 
narrow the number of involved districts.  There also is a strong likelihood of additional potential 
tag-along actions, considering the significant increase in the number of related actions to date and 
the nature of the alleged conduct at issue.  Thus, on this record, Section 1404 does not provide a 
reasonable prospect for eliminating the multidistrict character of the litigation.   
 
 
The Southern District of California is an appropriate transferee forum for this litigation.  
Centralization in this district allows us to assign this litigation to a less-frequently utilized district, 
where seven potential tag-along actions are pending.  Judge Larry A. Burns is an experienced 
transferee judge with the willingness and ability to manage this litigation. We are confident that 
he will steer this litigation on a prudent course. 
 
 
IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside 
the Southern District of California are transferred to the Southern District of California and, with 
the consent of that court, assigned to the Honorable Larry A. Burns for coordinated or consolidated 
pretrial proceedings. 
 
 
 
 
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    PANEL ON MULTIDISTRICT LITIGATION 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
  _________________________________________                                    
 
 
 
 
 
 
 
   Karen K. Caldwell 
 
 
 
 
 
 
 
             Chair 
 
 
 
 
 
 
Catherine D. Perry 
 
Nathaniel M. Gorton 
 
 
 
 
 
Matthew F. Kennelly  
Roger T. Benitez 
 
 
 
 
 
Dale A. Kimball
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IN RE: BANK OF AMERICA CALIFORNIA 
UNEMPLOYMENT BENEFITS LITIGATION   
 
 
         MDL No. 2992 
 
 
SCHEDULE A 
 
 
 
 
Central District of California 
 
 
ZOELLE, ET AL. v. BANK OF AMERICA, N.A., ET AL., C.A. No. 2:21−00518 
 
 
 
Eastern District of California 
 
 
WIGGINS v. BANK OF AMERICA, N.A., C.A. No. 2:21−00319 
 
 
 
Northern District of California 
 
 
YICK v. BANK OF AMERICA, N.A., C.A. No. 3:21−00376 
 
RODRIGUEZ v. BANK OF AMERICA, N.A., C.A. No. 3:21−00494 
 
WILLRICH v. BANK OF AMERICA, N.A., C.A. No. 3:21−00547 
 
MCCLURE v. BANK OF AMERICA, N.A., C.A. No. 3:21−00572 
 
OOSTHUIZEN, ET AL. v. BANK OF AMERICA, N.A., C.A. No. 3:21−00615 
 
WILSON v. BANK OF AMERICA, N.A., C.A. No. 3:21−00699 
 
MOSSON v. BANK OF AMERICA, N.A., C.A. No. 3:21−00743 
 
CAJAS v. BANK OF AMERICA, N.A., C.A. No. 3:21−00869 
 
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