Memo of Points and Authorities in Support of Defendant Bank of America — In re BofA Unemployment Litigation (Dkt. 84-1)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 84-1 · 2021-10-01 · Docket on CourtListener

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MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
 
CASE NO. 21-MD-02992-LAB-MSB 
 
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JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
YVONNE W. CHAN (pro hac vice) 
YChan@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA –  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 21-MD-02992-LAB-MSB 
 
DEFENDANT BANK OF 
AMERICA, N.A.’S 
MEMORANDUM OF POINTS 
AND AUTHORITIES IN 
SUPPORT OF ITS MOTION TO 
DISMISS MASTER 
CONSOLIDATED COMPLAINT 
PURSUANT TO FED. R. CIV. P. 
12(B)(1) AND 12(B)(6) 
 
Date:   
January 10, 2022 
Time:        11:30 a.m. 
Ctrm:  
14A – 14th Floor 
Judge:   
Hon. Larry Alan Burns 
 
Filed/Lodged Concurrently with: 
1. Memorandum 
2. Request for Judicial Notice 
3. Declaration of Robert Chestnut 
4. Declaration of Shane Daniels 
5. [Proposed] Order 
 
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MEMORANDUM OF POINTS AND  
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TABLE OF CONTENTS 
 
Page 
 
INTRODUCTION ..................................................................................................... 1 
BACKGROUND ....................................................................................................... 3 
ARGUMENT ............................................................................................................. 7 
I. 
Plaintiffs’ Direct Contract-Related Claims Must Be Dismissed (Counts 
7, 8, & 9). ......................................................................................................... 7 
A. 
Plaintiffs’ Claim for Breach of the Account Agreement (Count 
7) Must Be Dismissed. .......................................................................... 7 
1. 
Plaintiffs Have Not Stated A Claim Based on 
Investigation and Reimbursement of Unauthorized 
Transaction Claims. .................................................................... 7 
2. 
Plaintiffs Have Not Pled a Breach of Contract Based on 
Account Freezes. ....................................................................... 12 
3. 
Plaintiffs Have Failed to Allege a Factual Basis For 
Concluding that BANA Disregarded Instructions From 
EDD. ......................................................................................... 13 
B. 
Plaintiffs Have Not Stated A Claim For Breach Of The Implied 
Covenant Of Good Faith And Fair Dealing (Count 9). ...................... 14 
C. 
Plaintiffs’ Implied Contract Claim (Count 8) Must Be 
Dismissed. ........................................................................................... 16 
II. 
Plaintiffs Have Not Stated A Claim Under EFTA/Reg E (Count 1). ........... 17 
III. 
Plaintiffs Fail To State Any Claim As “Third-Party Beneficiaries” 
Under the EDD Agreement (Counts 11 and 12). .......................................... 20 
A. 
Plaintiffs Are Not Third-Party Beneficiaries. ..................................... 20 
B. 
Plaintiffs Fail To Allege A Breach Of The EDD Agreement. ............ 22 
IV. 
Plaintiffs Have Not Stated A Claim For Negligence Or Negligent 
Hiring (Counts 5 & 6). .................................................................................. 24 
V. 
Plaintiffs Have Not Stated A Claim For Breach of Fiduciary Duty 
(Count 10). ..................................................................................................... 27 
VI. 
Plaintiffs Have Not Stated A Claim For Violation Of The California 
Consumer Privacy Act Or The California Customer Records Act 
(Counts 2 and 3). ........................................................................................... 29 
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VII. Plaintiffs Have Not Stated A Claim For Violation of The California 
Unfair Competition Law (Count 4). .............................................................. 31 
A. 
The UCL Does Not Provide For The Relief Sought By 
Plaintiffs. ............................................................................................. 31 
B. 
Plaintiffs Have Not Adequately Alleged A Violation Of The 
UCL. .................................................................................................... 33 
1. 
Plaintiffs Have Not Adequately Alleged “Unlawful” Acts. ..... 33 
2. 
Plaintiffs Have Not Adequately Alleged “Unfair” Acts. ......... 34 
VIII. Plaintiffs Have Not Stated A Due Process Claim (Counts 13 & 14). ........... 36 
A. 
Plaintiffs Have Not Alleged Facts Sufficient To Establish That 
Bank Of America Is A State Actor. .................................................... 36 
B. 
Plaintiffs Have Not Alleged Any Due Process Violation. .................. 39 
CONCLUSION ........................................................................................................ 40 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Abdulaziz v. Twitter, Inc., 
2020 WL 6947929 (N.D. Cal. Aug. 12, 2020) ................................................... 27 
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 
526 U.S. 40 (1999) ....................................................................................... 36, 38 
APAC-Carolina, Inc. v. Greensboro-High Point Airport Auth., 
110 N.C. App. 664 (1993) .................................................................................. 16 
Baba v. Hewlett-Packard Co., 
2010 WL 2486353 (N.D. Cal. June 16, 2010) ................................................... 33 
Barvie v. Bank of Am., N.A., 
2018 WL 4537723 (S.D. Cal. Sept. 21, 2018) ................................................... 24 
Belluomini v. CitiGroup, Inc., 
2013 WL 3855589 (N.D. Cal. July 24, 2013) .................................................... 25 
Belue v. Keefe Commissary Grp., LLC, 
2021 WL 1197749 (D. Idaho Mar. 29, 2021) .................................................... 37 
Benton v. Baker Hughes, 
2013 WL 3353636 (C.D. Cal. June 30, 2013) .................................................... 17 
Berkla v. Corel Corp., 
302 F.3d 909 (9th Cir. 2002) .............................................................................. 16 
Bernardo v. U.S. Bank Nat. Ass’n, 
2011 WL 3667475 (N.D. Cal. Aug. 22, 2011) ................................................... 28 
Black by Black v. Indiana Area Sch. Dist., 
985 F.2d 707 (3d Cir. 1993) ............................................................................... 39 
Brunette v. Humane Soc’y of Ventura Cty., 
294 F.3d 1205 (9th Cir. 2002) ...................................................................... 38, 39 
California v. Kinder Morgan Energy Partners, L.P., 
569 F. Supp. 2d 1073 (S.D. Cal. 2008) .............................................................. 25 
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Chazen v. Centennial Bank, 
61 Cal. App. 4th 532 (1998) ............................................................................... 28 
Chen v. Allstate Ins. Co., 
819 F.3d 1136 (9th Cir. 2016) .............................................................................. 9 
Chen v. Bank of Am., N.A., 
2019 WL 9633650 (C.D. Cal. Oct. 29, 2019) .................................................... 19 
Chore-Time Equip., Inc. v. Cumberland Corp., 
713 F.2d 774 (Fed. Cir. 1983) ...................................................................... 19, 20 
Chose v. Accor Hotels & Resorts (Maryland) LLC, 
2020 WL 759365 (N.D. Cal. Feb. 14, 2020) ...................................................... 33 
Clapper v. Amnesty Int’l USA, 
568 U.S. 398 (2013) ........................................................................................... 27 
Cleveland v. Ludwig Inst. for Cancer Rsch. Ltd., 
2020 WL 3268578 (S.D. Cal. June 17, 2020) .................................................... 22 
Cohen v. Capital One, N.A., 
2015 WL 12746217 (C.D. Cal. June 1, 2015) .................................................... 32 
Davis v. FEC, 
554 U.S. 724 (2008) ............................................................................................. 9 
Davis v. HSBC Bank Nev., N.A., 
691 F.3d 1152 (9th Cir. 2012) ...................................................................... 31, 34 
DeWitt v. Cal Citizens Redistricting Comm’n, 
2016 WL 3049732 (N.D. Cal. May 31, 2016) ................................................... 19 
Diehl v. Starbucks Corp., 
2013 WL 12108658 (S.D. Cal. Oct. 16, 2013) ................................................... 15 
Dos Beaches, LLC v. Mail Boxes Etc., Inc., 
2012 WL 506072 (S.D. Cal. Feb. 15, 2012) ...................................................... 15 
Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 
2016 WL 6523428 (S.D. Cal. Nov. 3, 2016)...................................................... 25 
Fed. Deposit Ins. Co. v. Mallen, 
486 U.S. 230 (1988) ........................................................................................... 40 
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Flagg Bros., Inc. v. Brooks, 
436 U.S. 149 (1978) ..................................................................................... 36, 38 
Fronda v. Staffmark Holdings, Inc., 
2015 WL 3866860 (N.D. Cal. June 22, 2015) ................................................... 30 
GECCMC 2005-C1 Plummer St. Office Ltd. P’ship v. JPMorgan 
Chase Bank, Nat’l Ass’n, 
671 F.3d 1027 (9th Cir. 2012) ............................................................................ 21 
Ghalchi v. U.S. Bank, N.A., 
2015 WL 12655402 (C.D. Cal. Jan. 8, 2015) ..................................................... 18 
Gibson v. Jaguar Land Rover N. Am., LLC, 
2020 WL 5492990 (C.D. Cal. Sept. 9, 2020) ..................................................... 32 
Gilmore v. Garner, 
157 N.C. App. 664 (2003) .................................................................................. 15 
Giron v. Wells Fargo Bank, N.A., 
2014 WL 12589628 (C.D. Cal. May 27, 2014) .................................................. 23 
Glenn-Colusa Irrigation Dist. v. U.S. Army Corps of Eng’rs, 
2019 WL 3231748 (E.D. Cal. July 18, 2019) .................................................... 23 
Gonzalez-Maldonado v. MMM Healthcare, Inc., 
693 F.3d 244 (1st Cir. 2012) .............................................................................. 37 
Goonewardene v. ADP, LLC, 
6 Cal. 5th 817 (2019) .......................................................................................... 22 
Gunn v. Thrasher, Buschmann & Voelkel, P.C., 
982 F.3d 1069 (7th Cir. 2020) ............................................................................ 19 
Haynish v. Bank of Am., N.A., 
284 F. Supp. 3d 1037 (N.D. Cal. 2018).............................................................. 31 
Herskowitz v. Apple, Inc., 
301 F.R.D. 460 (N.D. Cal. 2014) ....................................................................... 32 
Hester v. Regions Bank, 
2010 WL 2232158 (M.D. Ala. June 3, 2010) .................................................... 37 
Huynh v. Quora, Inc., 
508 F. Supp. 3d 633 (N.D. Cal. 2020).......................................................... 31, 32 
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Hyp3r Inc. v. Mogimo Inc., 
2017 WL 11515712 (N.D. Cal. Nov. 8, 2017) ................................................... 31 
Ileto v. Glock Inc., 
349 F.3d 1191 (9th Cir. 2003) ............................................................................ 26 
Ironshore Specialty Ins. Co. v. 23andMe, Inc., 
2018 WL 5316173 (N.D. Cal. Oct. 26, 2018) .................................................... 23 
Jacobsen v. Katzer, 
609 F. Supp. 2d 925 (N.D. Cal. 2009).................................................................. 9 
Jiangmen Kinwai Furniture Decoration Co. v. IHFC Properties, LLC, 
2015 WL 6393801 (M.D.N.C. Oct. 22, 2015) ................................................... 10 
Klaehn v. Cali Bamboo, LLC, 
2020 WL 3971518 (S.D. Cal. July 13, 2020) ..................................................... 34 
Klamanth Water Users Protective Ass’n v. Patterson, 
204 F.3d 1206 (9th Cir. 1999) ............................................................................ 21 
Korea Supply Co. v. Lockheed Martin Corp., 
29 Cal. 4th 1134 (2003) ................................................................................ 32, 33 
Kruger v. Wells Fargo Bank, 
11 Cal. 3d 352 (1974) ......................................................................................... 36 
Lawrence v. Bank of Am., 
163 Cal. App. 3d 431 (1985) .............................................................................. 27 
Loiseau v. VISA USA Inc., 
2010 WL 4542896 (S.D. Cal. Feb. 10, 2010) ...................................................... 9 
Major v. Wells Fargo Bank, N.A., 
2014 WL 4103936 (S.D. Cal. Aug. 18, 2014).................................................... 33 
Mathews v. Eldridge, 
424 U.S. 319 (1976) ........................................................................................... 39 
McKinney v. Google, Inc., 
2011 WL 3862120 (N.D. Cal. 2011) .................................................................. 35 
McKnight v. Torres, 
563 F.3d 890 (9th Cir. 2009) .............................................................................. 15 
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Menzel v. Metrolina Anesthesia Assocs., P.A., 
66 N.C. App. 53 (1984) ........................................................................................ 9 
N.C. Mail Haulers & Postal Lab. Loc. 8001, Am. Postal Workers 
Union, AFL-CIO v. E. Coast Leasing, Inc., 
2006 WL 3068497 (M.D.N.C. Oct. 27, 2006) ................................................... 14 
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 
591 F.3d 250 (4th Cir. 2009) .............................................................................. 27 
Nev. Fleet LLC v. FedEx Corp., 
2021 WL 2402953 (E.D. Cal. June 11, 20212) .................................................. 24 
Oaks Mgmt. Corp. v. Superior Ct., 
145 Cal. App. 4th 453 (2006) ............................................................................. 27 
In re Outlaw Labs., LP Litig., 
2021 WL 1198652 (S.D. Cal. Mar. 30, 2021) .................................................... 14 
Pasadena Republican Club v. W. Just. Ctr., 
985 F.3d 1161 (9th Cir. 2021) ...................................................................... 38, 39 
Phillips v. TLC Plumbing, Inc., 
172 Cal. App. 4th 1133 (2009) ........................................................................... 26 
Quattrocchi v. Allstate Indem. Co., 
2018 WL 347779 (E.D. Cal. Jan. 9, 2018) ......................................................... 35 
Quezada v. Franklin Madison Grp., LLC, 
2020 WL 5819824 (S.D. Cal. Sept. 29, 2020) ................................................... 35 
Renderall-Baker v. Kohn, 
457 U.S. 830 (1982) ..................................................................................... 37, 38 
Rezapour v. Earthlog Equity Grp., Inc., 
2013 WL 3326026 (W.D.N.C. July 1, 2013) ..................................................... 15 
S. Cal. Gas Leak Cases,  
7 Cal. 5th 391 (2019) .......................................................................................... 24 
Shapiro v. Am.’s Credit Union,  
2013 WL 5373269 (W.D. Wash. Sept. 25, 2013) .............................................. 18 
Simi Mgmt. Corp. v. Bank of Am., N.A., 
930 F. Supp. 2d 1082 (N.D. Cal. 2013)........................................................ 25, 28 
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Smith v. Visa U.S.A., Inc., 
2011 WL 2709819 (N.D. Cal. July 12, 2011) .................................................... 24 
Solis v. City of Fresno, 
2012 WL 868681 (E.D. Cal. Mar. 13, 2012) ..................................................... 11 
Sonner v. Premier Nutrition Corp., 
971 F.3d 834 (9th Cir. 2020) .............................................................................. 32 
In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 
903 F. Supp. 2d 942 (S.D. Cal. 2012) ................................................................ 33 
Spa-Kur Therapy Dev., Inc. v. Bank of Am., N.A., 
2019 WL 1099834 (S.D. Cal. Mar. 8, 2019) ...................................................... 24 
Spiegel v. Ryan, 
946 F.2d 1435 (9th Cir. 1991) ............................................................................ 40 
Steinle v. City & Cnty. of San Francisco, 
919 F.3d 1154 (9th Cir. 2019) ............................................................................ 22 
Summers v. Earth Island Inst., 
555 U.S. 488 (2009) ........................................................................................... 27 
The H.N. & Frances C. Berger Found. v. Perez, 
218 Cal. App. 4th 37 (2013) ............................................................................... 21 
Townsend v. Bank of Am., N.A., 
2009 WL 10671412 (C.D. Cal. Mar. 9, 2009) ................................................... 27 
U.S. Commodity Futures Trading Comm’n v. Monex Credit Co., 
931 F.3d 966 (9th Cir. 2019) .............................................................................. 26 
Unilab Corp. v. Angeles-IPA, 
244 Cal. App. 4th 622 (2016) ............................................................................. 17 
Valenzuela v. ADT Sec. Servs., Inc., 
820 F. Supp. 2d 1061 (C.D. Cal. 2010) .............................................................. 25 
Venegas v. Bianco, 
2019 WL 10301094 (C.D. Cal. Aug. 26, 2019) ................................................. 37 
Vivendi SA v. T-Mobile USA Inc., 
586 F.3d 689 (9th Cir. 2009) .................................................................. 11, 26, 30 
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Volkswagen Grp. of Am., Inc. v. S. States Volkswagen, LLC, 
2011 WL 1549417 (M.D.N.C. Apr. 21, 2011) ................................................... 14 
Watson v. Bank of Am., N.A., 
2016 WL 3552061 (S.D. Cal. June 30, 2016) .............................................. 12, 13 
Widjaja v. JPMorgan Chase Bank, 
2020 WL 2949832 (C.D. Cal. Mar. 31, 2020) ................................................... 24 
In re Yahoo! Inc. Customer Data Sec. Breach Litig., 
2017 WL 3727318 (N.D. Cal. Sept. 22, 2020) ................................................... 31 
Statutes 
15 U.S.C. § 1693f .............................................................................................. 17, 18 
15 U.S.C. § 1693f(a)(3) ........................................................................................... 18 
15 U.S.C. § 1693f(c) .................................................................................................. 4 
15 U.S.C. § 1693g .............................................................................................. 17, 18 
42 U.S.C. § 1983 ...................................................................................................... 36 
31 U.S.C. § 5311 ........................................................................................................ 6 
Cal. Civ. Code § 1798.150(a)(1) ....................................................................... 29, 30 
Cal. Civ. Code § 1798.80......................................................................................... 30 
Cal. Civ. Code § 1798.100 ...................................................................................... 29 
Regulations 
12 C.F.R. § 1005.6 ............................................................................................. 17, 18 
12 C.F.R. § 1005.11 ................................................................................................. 17 
12 C.F.R. § 1005.11(b)(1)(i) .................................................................................... 18 
12 C.F.R. § 1005.11(b)(1)(iii) ................................................................................. 18 
12 C.F.R. § 1005.11(c)(2)(i) ...................................................................................... 4 
 
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Rules 
Fed. R. Civ. P. 8(a) .................................................................................................... 2 
Fed. R. Civ. P. 12(b)(1) ................................................................................... 7, 9, 19 
Fed. R. Civ. P. 12(b)(6) ............................................................................................. 7 
Legislative Materials 
S. Judiciary Comm. Rep. on A.B. 375 (June 25, 2018) .......................................... 29 
Other Authorities 
About the EDD Debit Card, Cal. Emp. Dev. Dep’t, 
https://www.edd.ca.gov/About_EDD/The_EDD_Debit_Card.htm/R
K=2/pdf/EDD_Digital_Account_Fee_Disclosure_and_other_Impor
tant_Disclosures.pdf ........................................................................................... 21 
Cal. Empl. Dev. Dep’t, Rep. No. 2020-128/628.1, EDD’s Poor 
Planning and Ineffective Management Left It Unprepared to Assist 
Californians Unemployed by COVID-19 Shutdowns (2021), 
https://www.auditor.ca.gov/pdfs/reports/2020-128and628.1.pdf ........................ 3 
CA EDD Admits Paying as Much as $31 Billion in Unemployment 
Funds to Criminals, ABC7 News (Jan. 25, 2021), 
https://abc7news.com/california-edd-unemployment-fraud-ca-
scam-insurance/10011810/ ................................................................................... 1 
Kenny Choi, Update: Outrage Mounts After Bank of America Denies 
Claims From Victims of EDD Bank Card Scammers, CBS Local 
News (Nov. 9, 2020), 
https://sanfrancisco.cbslocal.com/2020/11/09/outrage-mounts-after-
bank-of-america-denies-claims-from-victims-of-edd-bank-card-
scammers/ ............................................................................................................. 5 
Legis. Analyst’s Office, Legislative Oversight of Ongoing Challenges 
at EDD (Jan. 26, 2021), 
https://lao.ca.gov/handouts/state_admin/2021/EDD-Challenges-
012621.pdf ............................................................................................................ 4 
News Release, Cal. Empl. Dev. Dep’t, EDD Provides Updates on 
Unemployment Benefit Fraud and Fraud Prevention Efforts (Jan. 
25, 2021), https://edd.ca.gov/about_edd/pdf/news-21-05.pdf ............................. 1 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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News Release, U.S. Secret Serv. Media Rels., Secret Service 
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2020), 
https://www.secretservice.gov/newsroom/releases/2020/07/secret-
service-announces-creation-cyber-fraud-task-force ............................................. 3 
U.S. Dep’t of Labor, Unemployment Insurance Program Letter No. 28-
20 (Aug. 31, 2020), 
https://wdr.doleta.gov/directives/attach/UIPL/UIPL_28-20.pdf .......................... 3 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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INTRODUCTION 
This multi-district litigation arises from a massive surge in fraud targeting 
California’s unemployment benefits program during the COVID-19 pandemic.  At 
a time when millions of unemployed Californians were relying on government 
assistance, legions of criminals were exploiting this unprecedented crisis to target 
the state agency providing that assistance, the California Employment Development 
Department (“EDD”), by filing fraudulent unemployment benefits claims.  The 
responses to this wholly-unexpected crisis are the subject of these lawsuits. 
EDD administers unemployment benefits in California, and retained Bank of 
America, N.A. (“BANA”) to distribute those benefits through prepaid debit cards.  
As the Master Consolidated Complaint (“MCC”) acknowledges, frauds perpetrated 
on the unemployment insurance program exploded in mid-2020.  See, e.g., MCC 
(Dkt. No. 72) ¶ 79.  EDD has called the pervasive fraud a “criminal assault on the 
benefits system,” and public reports suggest the deep involvement of sophisticated 
overseas criminal gangs, “money mules,” users of the “dark web,” prison inmates, 
and other malevolent groups and individuals seeking to take advantage of federal 
and state responses to the current health and employment crisis—to the tune of $11 
billion to $31 billion of outright theft.1 
BANA has taken many steps to combat this unprecedented surge of criminal 
activity—which remains a challenge—including freezing accounts that are 
suspected to be illegitimate and denying cardholder claims for reimbursement that 
appear to represent further attempts at fraud.  In doing so, these measures have also 
had an unintended but regrettably unavoidable impact on some legitimate EDD 
 
1 See News Release, Cal. Empl. Dev. Dep’t, EDD Provides Updates on 
Unemployment Benefit Fraud and Fraud Prevention Efforts (Jan. 25, 2021), 
https://edd.ca.gov/about_edd/pdf/news-21-05.pdf (“January 25, 2021 EDD News 
Release”); CA EDD Admits Paying as Much as $31 Billion in Unemployment 
Funds to Criminals, ABC7 News (Jan. 25, 2021), https://abc7news.com/california-
edd-unemployment-fraud-ca-scam-insurance/10011810/ (“January 25, 2021 News 
Article”). 
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MEMORANDUM OF POINTS AND  
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cardholders.  BANA is sympathetic to the experiences of legitimate cardholders 
who have been affected by its fraud prevention measures.  BANA has provided 
numerous avenues for these affected cardholders to access their accounts and 
recover their funds, and many Plaintiffs acknowledge that their accounts have been 
unfrozen, their claims have been reconsidered, and they have been reimbursed.   
This difficult situation does not justify the lawsuit before the Court, as 
Plaintiffs have not demonstrated that they are entitled to relief on any of their 
causes of action.  Plaintiffs claim that BANA breached the cardholder Account 
Agreement and violated the Electronic Fund Transfer Act (“EFTA”) by freezing 
certain Plaintiffs’ accounts, but the Account Agreement expressly permits BANA to 
freeze accounts if it “suspect[s] irregular, unauthorized, or unlawful activity,” and 
EFTA does not govern account freezes.  Plaintiffs likewise have not adequately 
alleged that BANA failed to investigate and reimburse their claims of unauthorized 
transactions in violation of either the Account Agreement or EFTA, where many of 
them have been fully reimbursed (which also deprives them of a live Article III 
claim) and none have alleged sufficient facts to show that they are entitled to relief. 
The rest of Plaintiffs’ wide-ranging claims also fail because they are 
supported by neither law nor facts.2  For instance, their negligence, fiduciary duty, 
and California Consumer Privacy Act (“CCPA”) claims seek to impose duties on 
BANA that go far beyond any law or contract.  Plaintiffs assert that BANA had a 
legal duty to issue cards with embedded “chips”—even though the State specified 
the use of magnetic strips.  Plaintiffs have similarly failed to allege a violation of 
 
2 The vast majority of Plaintiffs provide only barebones allegations that fail to 
satisfy even a liberal reading of Fed. R. Civ. P. 8(a).  Plaintiffs appear to recognize 
their own pleading deficiencies based on their footnote stating that the allegations 
relating to Individual Plaintiffs “are presented here as set forth in each of their 
complaints, after meeting and conferring with Individual Plaintiffs’ liaison 
counsel.”  MCC ¶ 89 n.16.  Plaintiffs cannot sidestep their basic pleading 
obligations by relying on their prior, similarly deficient, pleadings, or on off-the-
record conversations among the lawyers. If the MCC does not contain the necessary 
allegations, that is the end of the matter under Rule 8. 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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California’s Unfair Competition Law, as they are challenging BANA’s efforts to 
fight an unprecedented level of fraud directed at a government benefits program, 
which is hardly unfair or immoral.   
For these and the other reasons set forth below, Plaintiffs’ Master 
Consolidated Complaint must be dismissed in its entirety.  
BACKGROUND 
I. 
THE COVID-19 PANDEMIC RESULTED IN UNPRECEDENTED LEVELS OF 
UNEMPLOYMENT AND WIDESPREAD FRAUDULENT ACTIVITY. 
Since the beginning of the pandemic, millions of Californians have sought 
unemployment benefits, including many who were not traditionally eligible for state 
benefits but who qualified for Pandemic Unemployment Assistance (“PUA”) under 
the federal CARES Act.3  See MCC ¶ 75.  Unfortunately, this infusion of federal 
dollars and the creation of PUA, a program easily misused by criminals, led to an 
explosion of fraudulent activity directed at the EDD program.4  See id. at ¶¶ 76, 79.   
The frauds have taken two main forms that are relevant here.  First, individuals 
who are not entitled to any unemployment benefits (e.g., prisoners, international 
syndicate members, non-Californians, even those who are gainfully employed) have 
submitted false applications, often using stolen identities.  See supra, p. 1 n.1.  EDD, 
which has complete responsibility for determining eligibility and approving benefits 
claims, has confirmed that it approved many ineligible applicants and distributed 
 
3 PUA is designed to provide benefits to persons generally not previously eligible 
for unemployment assistance, such as the self-employed and contractors (including 
participants in the “gig” economy).  See Cal. Empl. Dev. Dep’t, Rep. No. 2020-
128/628.1, EDD’s Poor Planning and Ineffective Management Left It Unprepared 
to Assist Californians Unemployed by COVID-19 Shutdowns, at 10 (2021), 
https://www.auditor.ca.gov/pdfs/reports/2020-128and628.1.pdf. 
4 See, e.g., U.S. Dep’t of Labor, Unemployment Insurance Program Letter No. 28-
20 (Aug. 31, 2020), https://wdr.doleta.gov/directives/attach/UIPL/UIPL_28-20.pdf; 
News Release, U.S. Secret Serv. Media Rels., Secret Service Announces the 
Creation of the Cyber Fraud Task Force (July 9, 2020), 
https://www.secretservice.gov/newsroom/releases/2020/07/secret-service-
announces-creation-cyber-fraud-task-force.  
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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between $11 billion and $31 billion in fraudulently-obtained benefits.  See id.  Most 
of these funds were paid through prepaid debit cards issued by BANA, pursuant to a 
contractual arrangement with EDD, as described below. The “overwhelming 
majority” of this “enrollment fraud” has been associated with PUA claims “due to 
federal policymakers’ decision to prioritize immediate assistance,” and thus require 
a “lower standard of identity and wage information” from applicants.5   
Second, criminals have exploited EFTA and its implementing regulation, 
Regulation E (“Reg E”), which set forth requirements that a prepaid card issuer like 
BANA must follow when a cardholder reports an account error, such as an allegedly 
unauthorized ATM transaction (referred to here as “Claims”).  As relevant here, the 
prepaid card issuer must issue the cardholder a provisional credit if its investigation 
into the Claim is not completed within ten business days.  See 15 U.S.C. § 1693f(c); 
12 C.F.R. § 1005.11(c)(2)(i).  Because this makes the disputed funds available 
pending the completion of the investigation, criminals have taken advantage of this 
federally-mandated protection by committing “double dipping” fraud: they file 
fraudulent Claims, obtain provisional credits, and then deplete the provisionally 
credited funds before the credit can be reversed when the false Claim is identified 
(and, in some cases, this fraud may go undetected and the credits may not be 
reversed).  This “double dipping” fraud is committed both by individuals who 
engaged in enrollment fraud and individuals who are legitimate benefits recipients. 
II. 
THE CALIFORNIA BENEFITS PROGRAM. 
EDD retained BANA to deliver unemployment and disability benefits to 
California residents pursuant to an agreement between EDD and BANA (the “EDD 
Agreement”).  See MCC ¶¶  38–39; Declaration of Robert Chestnut (“Chestnut 
Decl.”), Ex. 2.  Under the EDD Agreement, BANA issues prepaid debit cards (“EDD 
 
5 Legis. Analyst’s Office, Legislative Oversight of Ongoing Challenges at EDD, at 
5 (Jan. 26, 2021), https://lao.ca.gov/handouts/state_admin/2021/EDD-Challenges-
012621.pdf.   
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Debit Cards”) to EDD-approved recipients who choose to receive their benefits 
through a prepaid debit card rather than a check from EDD, and EDD distributes 
benefits by funding those debit card accounts.  See MCC ¶ 41.   
EDD chose to require magnetic strip cards for its prepaid card program; as 
specified in the EDD Agreement and EDD’s own RFP, BANA issued EDD Debit 
Cards with magnetic strip technology.  See Chestnut Decl., Ex. 2, at 5 (Req. #323) 
(“The debit card shall contain no less than an ISO 7811-compliant high coercivity 
magnetic strip.”).  EDD has, in fact, publicly confirmed that it chose not to require 
chip cards in the EDD Agreement.6   
As with any government benefit program, fraud deterrence and prevention is 
an important part of the EDD program and BANA’s prepaid debit-card program.  
BANA, in close collaboration with EDD, has taken a number of steps to address both 
enrollment fraud and “double dipping” fraud in the state program.  See supra, p. 4.  
Among other measures, BANA freezes or blocks accounts and denies Claims that it 
believes to involve illegitimate beneficiaries and fraudulent or suspicious activity.7  
These fraud prevention measures are expressly permitted by the account agreement 
(“Account Agreement”) that governs the cardholder’s contractual relationship with 
BANA.  MCC ¶¶ 4, 71.  Among other terms, the Account Agreement authorizes 
BANA to “freeze” accounts if it “suspect[s] irregular, unauthorized, or unlawful 
activities may be involved.”  Chestnut Decl., Ex. 1, § 2.  It also specifies that BANA 
may restrict access to any prepaid debit card if BANA notices suspicious activity, id. 
 
6 See Kenny Choi, Update: Outrage Mounts After Bank of America Denies Claims 
From Victims of EDD Bank Card Scammers, CBS Local News (Nov. 9, 2020), 
https://sanfrancisco.cbslocal.com/2020/11/09/outrage-mounts-after-bank-of-
america-denies-claims-from-victims-of-edd-bank-card-scammers/ (EDD: 
“Providing chip technology is a rather new offering and was not included in the 
current contract with Bank of America to provide debit card services for 
Unemployment Insurance (UI) claimants.”).    
7 Account freezes and blocks both prevent a cardholder from accessing the account 
until the freeze or block is lifted; one primary difference between the two is that a 
cardholder may remove a block by verifying their identity with BANA.   
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MEMORANDUM OF POINTS AND  
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§ 3, and deduct from an account funds that a cardholder is not entitled to keep, id. § 
2.  These rights are consistent with BANA’s numerous obligations under federal law 
as a bank, including under the Bank Secrecy Act (31 U.S.C. § 5311 et seq.), to 
monitor and report fraudulent and suspicious activity, and to prevent BANA from 
being used as an instrument of fraud or illegal acts such as money laundering.     
III. 
INITIAL CASES AND THE MULTIDISTRICT LITIGATION. 
Plaintiffs filed a number of individual and class action proceedings against 
BANA in federal district court in California.  In broad strokes, the actions 
challenged BANA’s efforts to manage the unprecedented surge in unemployment 
fraud, arguing that BANA should have done more to combat the surge, but also 
should not have frozen Plaintiffs’ accounts or denied their Claims based on 
suspected fraud.  In other words, Plaintiffs’ theory was that BANA was both too 
active in policing fraud and not active enough.   
BANA filed motions to dismiss in six cases (including two motions in one 
case), but no oppositions were filed and none of the motions were resolved.  On 
June 2, 2021, District Judge Chhabria issued a preliminary injunction in one of the 
cases, Yick v. Bank of America; this Court properly observed that the injunction was 
largely directed towards providing enhanced opportunities for certain debit card 
holders to seek to restore access to funds on their cards, but it also enjoined one 
aspect of the Bank's fraud strategies.  Yick v. Bank of America, N.A., Case No. 21-
cv-00376-VC (N.D. Cal.) (“Yick”), ECF No. 103 (June 2, 2021) (“Yick Preliminary 
Injunction”).  Judge Chhabria requested that the parties work out the terms of the 
injunction, which they did, in light of the Court's concerns, among others, that the 
order not “unduly hinder” the Bank’s anti-fraud measures.  Yick, ECF No. 89 at 3 
(May 17, 2021) (“Yick Preliminary Order”). 
Shortly thereafter, on June 4, 2021, the Judicial Panel on Multidistrict 
Litigation consolidated the actions in this District.  ECF No. 1.  Following an initial 
Status Conference, the Court ordered Plaintiffs to file a Master Consolidated 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Complaint (“MCC”).  In the MCC, which was drafted with the benefit of the record 
facts entered in Yick, Plaintiffs allege that they received EDD benefits and that 
BANA improperly froze their EDD Debit Card accounts and/or did not reimburse 
them for allegedly unauthorized transactions on those accounts.  See MCC ¶¶ 1–4.  
Their allegations largely mirror their prior complaints and do not remedy the many 
deficiencies that BANA identified in its previous motions to dismiss. 
ARGUMENT 
I. 
PLAINTIFFS’ DIRECT CONTRACT-RELATED CLAIMS MUST BE DISMISSED 
(COUNTS 7, 8, & 9). 
Plaintiffs raise three claims based on an alleged contractual relationship with 
BANA: breach of the Account Agreement (count 7); breach of the implied 
covenant of good faith and fair dealing in the Account Agreement (count 9); and 
breach of a separate “implied” contract (count 8).  The Court should dismiss all 
three under Rules 12(b)(1) and 12(b)(6).   
A. 
Plaintiffs’ Claim for Breach of the Account Agreement (Count 7) 
Must Be Dismissed. 
Plaintiffs’ claim for breach of the Account Agreement is based on three 
theories.  MCC ¶ 608.  First, they assert that BANA’s Claims investigation and 
reimbursement practices violated Section 9, which contains BANA’s “Zero 
Liability” Policy for unauthorized transactions, and Section 11, which sets forth 
procedures for resolving errors involving account transactions.  See Chestnut Decl., 
Ex. 1.  Second, they assert that BANA froze or blocked their accounts.  Third, they 
assert that BANA failed to make funds available to them as instructed by EDD.  
None of these theories is legally viable as to any Plaintiff. 
1. 
Plaintiffs Have Not Stated A Claim Based on Investigation 
and Reimbursement of Unauthorized Transaction Claims.  
The theory that BANA breached Sections 9 and 11 of the Account 
Agreement by failing to properly investigate or credit Claims fails for all Plaintiffs.   
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MEMORANDUM OF POINTS AND  
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First, the vast majority of Plaintiffs have not adequately pled facts showing 
that BANA’s obligations under either Section 9 or Section 11 were triggered.  
Section 9 states that cardholders “may” be reimbursed for certain “unauthorized” 
transactions, while Section 11 applies to an “error” involving a transaction.  But 
dozens of Plaintiffs do not allege that they reported any unauthorized or erroneous 
transaction to BANA.  See App’x Column 1.8  Some Plaintiffs allege vaguely that 
they reported “fraud” but do not allege facts sufficient to show that the reported 
“fraud” fell within the scope of Sections 9 and 11.9  See App’x Column 2. 
The Account Agreement also specifies that, to trigger BANA’s obligations 
under Sections 9 and 11, a cardholder must provide notice to BANA within a 
certain period of time and must inform BANA, among other things, “[w]hy [they] 
believe there is an error, and the dollar amount involved.”  Chestnut Decl., Ex. 1,  
§ 11.  But many Plaintiffs allege that they reported fraud months after it occurred, 
well beyond the contractual time limits.  See, e.g., MCC ¶¶ 312, 422, 435, 451, 456, 
491; Chestnut Decl., Ex. 1, § 9 (requiring notice “within a reasonable time,” to “be 
determined in [BANA’s] sole discretion”); id. § 11 (requiring notice no later than 
60 days after the first statement on which the error appeared, or the date a 
cardholder electronically accessed their account, but in any event no later than 120 
days after the transaction allegedly in error).  And the vast majority of Plaintiffs fail 
to allege that they provided BANA with the contractually-required information, 
including the basis of their belief that there was an error.  See App’x Column 3.10  
 
8 Rather than citing to all Plaintiff-specific paragraphs for each argument, BANA 
has included an Appendix identifying individual Plaintiffs to whom the arguments 
apply.   
9 See, e.g., MCC ¶ 383 (Plaintiff “reported the fraud” after discovering that 
someone had used his information to receive benefits). 
10 General assertions that Plaintiffs provided “reasons for their belief that the 
transaction was unauthorized,” MCC ¶ 535, are not sufficient where Plaintiffs do 
not actually plead the reasons they provided to BANA.  
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Under the plain language of the Agreement, BANA was under no contractual 
obligation to investigate Plaintiffs’ Claims when they were not timely reported or 
adequately explained.   
Second, a substantial number of Plaintiffs allege that they have been fully 
reimbursed.  See App’x Column 4.  The Account Agreement expressly limits 
BANA’s contractual liability to the “face amount of any unauthorized card 
transaction” and specifies that BANA is “not liable for any claims of special, 
indirect or consequential damages.”  Chestnut Decl., Ex. 1, § 9.  Fully-reimbursed 
Plaintiffs therefore cannot recover any contract damages, which means they fail to 
state a breach-of-contract claim.  See Menzel v. Metrolina Anesthesia Assocs., P.A., 
66 N.C. App. 53, 59 (1984) (breach of contract properly dismissed where no 
evidence of damages); Loiseau v. VISA USA Inc., 2010 WL 4542896, at *2 (S.D. 
Cal. Feb. 10, 2010) (“Plaintiff cannot state a breach of contract claim as to either 
[defendant], because he fails to allege damages.”).11  In addition, because these 
fully-reimbursed Plaintiffs have received all of the relief to which they would be 
entitled under the contract, their contract claims are moot, and must also be 
dismissed pursuant to Rule 12(b)(1).  See Davis v. FEC, 554 U.S. 724, 734 (2008) 
(plaintiff must establish Article III case or controversy for each claim “he seeks to 
press and for each form of relief that is sought” (internal quotations omitted)); Chen 
v. Allstate Ins. Co., 819 F.3d 1136, 1144 (9th Cir. 2016) (claim is moot once 
plaintiff “receives all of the relief to which he or she is entitled on the claim”).12   
On top of these deficiencies, none of the Plaintiffs allege facts sufficient to 
 
11 The Account Agreement is governed by North Carolina law, see Chestnut Decl., 
Ex. 1, § 18, but for purposes of this motion to dismiss there are no material 
differences between North Carolina law and California law. 
12 Dismissal on this ground applies equally to the Plaintiffs who have been fully 
reimbursed but who did not allege as such in the Complaint.  See Declaration of 
Shane Daniels (“Daniels Decl.”) ¶ 3; Jacobsen v. Katzer, 609 F. Supp. 2d 925, 930 
(N.D. Cal. 2009) (Court may “rely on affidavits or any other evidence properly 
before the court” when ruling on a Rule 12(b)(1) motion). 
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MEMORANDUM OF POINTS AND  
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10 
CASE NO. 21-MD-02992-LAB-MSB 
 
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show that Sections 9 or 11 of the Account Agreement were violated.  Instead, the 
allegations essentially are that BANA breached the Account Agreement because it 
did not pay every one of the Claims it received.  Conclusory allegations of breach 
are not sufficient to state a claim where, as here, contractual conditions limit a 
party’s liability or duty.  Section 9 expressly provides that transactions are not 
considered “unauthorized” if “for any other reason [BANA] conclude[s] that the 
facts and circumstances do not reasonably support a claim of unauthorized use.”  
Chestnut Decl., Ex. 1, § 9.  Plaintiffs allege no facts to show that BANA’s decision 
was based on anything other than such a conclusion.  Instead, Plaintiffs allege that 
BANA denied a number of Claims based on a “Claim Fraud Filter” that was used to 
identify suspected fraud, and informed those cardholders that it “believe[d] the 
account or the claim have been the subject of fraud or suspicious activity.”  MCC 
¶ 89.13  In other words, according to Plaintiffs, BANA concluded that the disputed 
transactions did not appear to be unauthorized because the Claim Fraud Filter 
indicated a suspicion of fraud—which is squarely within what Section 9 permits.  
Because Plaintiffs do not allege facts to show that BANA’s denial of their Claim 
was based on anything other than a “conclu[sion] that the facts and circumstances 
do not reasonably support a claim of unauthorized use,” they have not alleged a 
breach of Section 9.  See Jiangmen Kinwai Furniture Decoration Co. Ltd v. IHFC 
Properties, LLC, 2015 WL 6393801, at *3 (M.D.N.C. Oct. 22, 2015) (granting 
summary judgment for defendant based on evidence it acted in good faith in 
exercising discretion to determine if substitute premises were equivalent). 
Plaintiffs’ general assertions that the Claim Fraud Filter applied “summarily” 
or was “flawed” are also insufficient to establish a violation of Section 11.  Section 
11 does not specify a particular manner in which an investigation can or cannot be 
conducted: there is no minimum length requirement, for example, nor any 
 
13 The vast majority of Plaintiffs do not even allege facts to show that their Claims 
were denied based on the Claims Fraud Filter.  See App’x Column 5. 
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MEMORANDUM OF POINTS AND  
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11 
CASE NO. 21-MD-02992-LAB-MSB 
 
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prohibition on automated investigation procedures.  Section 11 simply states that 
BANA “will determine whether an error occurred”—which is precisely what 
BANA did when it denied Claims based on fraud or suspicious activity.  Indeed, it 
is perfectly reasonable to begin an investigation by applying a screening step to first 
determine whether a Claim itself is likely fraudulent—if it is, then there was no 
transaction error, and no further investigation is needed.  Nowhere does Section 11 
require that BANA go through all possible investigation steps for all Claims—once 
it determines that no error occurred (whether it is because the Claim itself is 
fraudulent, or for one of many other possible reasons), it is reasonable to conclude 
the investigation at that point.  Plaintiffs have not alleged facts to show otherwise, 
nor have they alleged any facts to show that BANA failed to make a determination 
as required by Section 11.14  See, e.g., MCC ¶ 276 (BANA informed Plaintiff that it 
was denying her claim because transfers were posted as requested); id. ¶ 283 (letter 
from BANA stating it had “determined that no error has occurred”).  Their 
disagreement with the outcome of BANA’s investigation does not establish that the 
investigation failed to comply with the contract.   Accordingly, Plaintiffs’ claim for 
breach of Section 11 fails as well. 
 
14 A handful of Plaintiffs (Yick, Smith, Burns, Hanna, Horath, Morgan, Duey, and 
de Vera, see MCC ¶¶ 114–126, 200–202, 315, 384, 398, 440, 346, 337) allege that 
BANA did not make any determination at all, but they also failed to allege that they 
provided BANA with the information that would trigger a Section 11 investigation 
and determination, and their claims fail on that basis.  See App’x Column 3.  It also 
appears that some of these Plaintiffs reported a “fraud” that was not covered by 
Section 11.  See, e.g., MCC ¶ 346 (discovered someone else had applied for 
benefits in her name and reported the fraud to BANA, which “said there was 
nothing they could do and that they needed to wait until EDD handled an appeals 
process”); id. ¶ 440 (notified BANA that a fraudulent person attempted to register 
under her name in two different states, and BANA “told her there was nothing they 
could do and that she needed to resolve her issue with EDD”).  Many Plaintiffs also 
merely allege “on information and belief” that BANA failed to conduct an 
investigation, which is insufficient to survive a motion to dismiss.  See Vivendi SA 
v. T-Mobile USA Inc., 586 F.3d 689, 695 (9th Cir. 2009) (allegations based “upon 
information and belief” did not state a “plausible” claim for relief); Solis v. City of 
Fresno, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13, 2012) (“In the post-Twombly 
and Iqbal era, pleading on information and belief, without more, is insufficient to 
survive a motion to dismiss for failure to state a claim.”).     
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Though Plaintiffs rely on the Yick preliminary injunction (MCC ¶ 109), that 
order neither requires nor supports a different result.  The preliminary order on 
which the injunction was based preceded the filing of the MCC and did not address 
the now-superseded contract claims in any detail (covering all aspects of the 
contract issues in less than a full sentence), or address the numerous pleading 
deficiencies that BANA had identified at that time.  See Yick Preliminary Order, at 
1.  The order also did not address any individual Yick plaintiff’s allegations, and 
certainly not the allegations of any plaintiff who was not a part of Yick. 
2. 
Plaintiffs Have Not Pled a Breach of Contract Based on 
Account Freezes. 
Plaintiffs’ second contract theory, that BANA breached the Account 
Agreement by freezing or blocking some (but not all) of Plaintiffs’ accounts (see 
App’x Column 6), fails across the board because the contract expressly authorizes 
BANA to freeze accounts.  See Chestnut Decl., Ex. 1, § 2 (“If we suspect irregular, 
unauthorized, or unlawful activities may be involved with your Account, we may 
‘freeze’ (or place a hold on) the balance pending an investigation of such suspected 
activities.”).  Plaintiffs offer no facts to support their conclusory assertions that 
accounts were frozen in a manner inconsistent with that provision.  MCC ¶ 608; see 
Watson v. Bank of Am., N.A., 2016 WL 3552061, at *21 (S.D. Cal. June 30, 2016) 
(granting motion to dismiss because Plaintiffs “failed to allege specific facts” to 
support their claim).  Neither their allegation that the Claim Fraud Filter was used 
to freeze or block accounts nor their assertion that the Filter was “highly flawed and 
unreliable” (MCC ¶ 93) shows that BANA acted for reasons other than a 
“susp[icion] [of] irregular, unauthorized, or unlawful activities.”  Plaintiffs also fail 
to plead any facts showing that account freezes or blocks were longer than 
“necessary for a reasonable investigation.”  MCC ¶ 608(e). 
Once again, the Yick preliminary injunction does not provide support for 
these claims.  As noted above, the Yick court specifically recognized that the 
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MEMORANDUM OF POINTS AND  
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13 
CASE NO. 21-MD-02992-LAB-MSB 
 
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injunction needed to be framed in order to protect the Bank’s right to “freez[e] the 
accounts of people who are likely to have obtained their cards through fraud.”  Yick 
Preliminary Order, at 3.  While the Yick court stated that it found a likelihood of 
success that cards had been frozen “based on a faulty screening process,” see id. at 
1, that observation related to the EFTA cause of action and did not address how 
freezing a card could violate the Bank’s contractual right to do so based only on a 
suspicion of fraud, during a time when even Plaintiffs admit fraud was rampant in 
the California unemployment benefits program.   
3. 
Plaintiffs Have Failed to Allege a Factual Basis For 
Concluding that BANA Disregarded Instructions From 
EDD. 
Plaintiffs’ final contract theory is that BANA failed to “make funds 
available” in accordance with EDD’s instructions, including on the day EDD 
instructed BANA to fund their accounts.  MCC ¶ 608(g), (h); see Chestnut Decl., 
Ex. 1, § 2 (“We will add funds to your Account only (a) in accordance with 
instructions from the EDD . . .); id. (“Funds are available for your use on the day 
we have been instructed by the EDD to fund your Account.”).  This theory fails as 
to all Plaintiffs because none allege that EDD provided BANA any funding 
instructions that BANA failed to follow, or that funds were not available on the day 
BANA was instructed to fund an account.  See Watson, 2016 WL 3552061, at *21.  
This theory is simply an attempt by those Plaintiffs whose accounts were 
frozen or blocked (see App’x Column 6) to circumvent the express contractual 
language permitting BANA to take those actions.  While Section 2 states that 
BANA will fund an account when instructed by EDD and the funds will be 
available for use that day, there are a large number of limits on funds availability 
spread throughout the Account Agreement.  See, e.g., Chestnut Decl., Ex. 1, § 2 
(BANA’s right to freeze, BANA’s right to withdraw funds the cardholder is “not 
entitled to,” delays for emergencies), § 3 (BANA’s right to “restrict access” to card 
in light of “suspicious activities,” limits on frequency and types of transactions), § 4 
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MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
14 
CASE NO. 21-MD-02992-LAB-MSB 
 
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(no illegal transactions), § 16 (BANA’s right to “close or suspend” account “at any 
time”).  To interpret the funding provisions to prohibit account freezes would 
render Section 2 meaningless, in violation of basic principles of contract 
interpretation.  See Volkswagen Grp. of Am., Inc. v. S. States Volkswagen, LLC, 
2011 WL 1549417, at *2 (M.D.N.C. Apr. 21, 2011) (“[A]n interpretation which 
gives a reasonable meaning to all provisions of a contract will be preferred to one 
which leaves a portion of the writing useless or superfluous.”); In re Outlaw Labs., 
LP Litig., 2021 WL 1198652, at *3 (S.D. Cal. Mar. 30, 2021) (same).  
B. 
Plaintiffs Have Not Stated A Claim For Breach Of The Implied 
Covenant Of Good Faith And Fair Dealing (Count 9).  
Plaintiffs allege that BANA breached the implied covenant of good faith and 
fair dealing in the Account Agreement, offering an exhaustive laundry list of 
agreements that Plaintiffs wish BANA had made, but which they now seek to create 
out of thin air.  Not surprisingly, most of these alleged “implied” duties are vaguely 
expressed and sweeping, only demonstrating they cannot possibly be found to arise 
from the Account Agreement.  So, the claim asserts that BANA breached the 
implied covenant by generally failing to “safeguard” EDD benefits, including by 
issuing magnetic strip rather than chip cards; failing to ensure “effective” customer 
service; failing to warn or notify Plaintiffs of unauthorized use of their cards; failing 
to investigate unauthorized transaction claims or provide provisional credits; failing 
to employ “reasonable practices and procedures” to safeguard Plaintiffs’ personal 
information; and freezing accounts without a “reasonable basis” and without 
providing a means to contest the freeze.  MCC ¶¶ 621, 622.  
These allegations fail as a matter of law for at least three reasons.  First, 
Plaintiffs cannot use the implied covenant to impose new obligations that extend 
beyond or contradict the Account Agreement.  See N.C. Mail Haulers & Postal 
Lab. Loc. 8001, Am. Postal Workers Union, AFL-CIO v. E. Coast Leasing, Inc., 
2006 WL 3068497, at *7 (M.D.N.C. Oct. 27, 2006) (“implied covenant cannot add 
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MEMORANDUM OF POINTS AND  
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15 
CASE NO. 21-MD-02992-LAB-MSB 
 
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new obligations to [an] agreement [as] it only governs the existing one”); McKnight 
v. Torres, 563 F.3d 890, 893 (9th Cir. 2009) (same).  Thus, Plaintiffs cannot use the 
implied covenant to manufacture an obligation to issue chip cards, provide a certain 
level of customer service, take certain actions to protect Plaintiffs’ personal 
information, or provide warnings or a “reasonable means” for contesting account 
freezes where the Account Agreement contains no such requirements.  Similarly, 
Plaintiffs’ claim that BANA was obligated to freeze accounts “only to protect them 
from third-party fraud,” MCC ¶ 621, impermissibly restricts the relevant provision 
in the Account Agreement, which expressly permits a freeze if BANA suspects any 
“irregular, unauthorized, or unlawful activities” regardless of whether BANA 
suspects they were committed by the cardholder or by a third party.  Chestnut Decl., 
Ex. 1, § 2; see Gilmore v. Garner, 157 N.C. App. 664, 667 (2003) (“No meaning, 
terms, or condition can be implied which are inconsistent with the expressed 
provisions.” (alterations and citations omitted)); Dos Beaches, LLC v. Mail Boxes 
Etc., Inc., 2012 WL 506072, at *15 (S.D. Cal. Feb. 15, 2012) (“[T]he covenant of 
good faith may not be read to prohibit a party from doing something that the 
contract expressly permits them to do.”).   
Second, Plaintiffs cannot bring an implied covenant claim based on the same 
allegations as those underlying their express contract claim.  See Rezapour v. 
Earthlog Equity Grp., Inc., 2013 WL 3326026, at *4 (W.D.N.C. July 1, 2013) 
(dismissing implied covenant claim as “Plaintiffs’ allegations are duplicative of 
Plaintiffs’ allegations of breach of contract”); Diehl v. Starbucks Corp., 2013 WL 
12108658, at *6 (S.D. Cal. Oct. 16, 2013) (same).  Here, Plaintiffs’ allegations 
regarding BANA’s investigation of Claims and its freezing of accounts also form 
the basis of Plaintiffs’ contract claim.  Compare, e.g., MCC ¶ 608 (asserting breach 
of contract based on alleged failure to “timely and reasonably investigate and 
resolve [Plaintiffs’] fraud claims” and “to provide [Plaintiffs] with provisional 
credit when the Bank’s investigation into their fraud claims exceeds 10 business 
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MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
16 
CASE NO. 21-MD-02992-LAB-MSB 
 
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days”), with id. ¶ 622 (asserting breach of covenant based on alleged failure to 
“timely or adequately process and investigate EDD Debit Cardholders’ claims 
regarding unauthorized transactions” and “to extend provisional credit in cases 
where EDD Debit Cardholders’ fraud claims are not timely resolved”).   
Third, the claim itself, even if not legally barred, is too vaguely alleged.  The 
supposed terms—such as the obligation to have “reasonably adequate” customer 
service, to take “reasonable” measures to safeguard Plaintiffs’ information,  or to 
“notify” cardholders of transactions that were too far away or too “inconsistent” 
with the cardholders’ “past Account access behaviors”—provide no standards this 
Court or a jury could understand, interpret, or enforce.  (The few that are at least 
somewhat specific duplicate the contract terms, as noted above.)  The claim also 
provides no specific factual allegations of how these imagined terms were not met.  
The implied covenant claim therefore must be dismissed. 
C. 
Plaintiffs’ Implied Contract Claim (Count 8) Must Be Dismissed.  
Having failed to state a claim for breach of the Account Agreement, 
Plaintiffs attempt to manufacture a separate contract claim based on a different and 
wholly distinct contract that they assert was “implied.”  This theory essentially 
echoes the implied covenant claim, seeking to impose those imagined duties 
through an implied contract rather than an implied covenant. The claim fares no 
better in these different clothes, and is deficient for the same reasons just explained. 
Plaintiffs’ implied-contract theory fails as a matter of law for two additional, 
separate reasons.  First, it is well established that “[t]here cannot be a valid, express 
contract and an implied contract, each embracing the same subject matter, existing 
at the same time.”  Berkla v. Corel Corp., 302 F.3d 909, 918 (9th Cir. 2002); see 
APAC-Carolina, Inc. v. Greensboro-High Point Airport Auth., 110 N.C. App. 664, 
675 (1993) (“[N]o contract will be implied where an express contract covers the 
same subject matter.”).  Here, the “subject matter” of the alleged implied contract—
BANA’s servicing of EDD Debit Cards—is already governed by an “express 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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contract” (the Account Agreement).  Thus, BANA is not subject to any additional, 
“implied” obligations on this topic.  
Second, “an implied-in-fact contract requires an ascertained agreement of the 
parties.”  Unilab Corp. v. Angeles-IPA, 244 Cal. App. 4th 622, 636 (2016).  
Plaintiffs assert that BANA “agreed” to take “reasonable steps” to protect their 
accounts, including, for example, issuing chip cards.  MCC ¶¶ 612, 615.  But 
Plaintiffs do not allege any facts showing BANA’s assent to these additional 
obligations, and have therefore failed to state a claim based on an implied contract.  
See Benton v. Baker Hughes, 2013 WL 3353636, at *7 (C.D. Cal. June 30, 2013) 
(dismissing claim for breach of implied contract in the absence of “mutual assent”).  
II. 
PLAINTIFFS HAVE NOT STATED A CLAIM UNDER EFTA/REG E (COUNT 1). 
Plaintiffs’ claim under EFTA and Reg E, which set forth the procedures that 
financial institutions must follow in investigating a consumer’s claims of 
unauthorized transactions and limit consumer liability for unauthorized transactions 
to $50 or less in most instances, fails for many of the same reasons as their contract 
claim.  See 15 U.S.C. §§ 1693f, 1693g; 12 C.F.R. §§ 1005.6, 1005.11.  Plaintiffs 
allege that BANA violated EFTA and Reg E by (1) failing to properly investigate 
and resolve their claims, including by not provisionally crediting their accounts and 
by subjecting them to more than the maximum amount of liability permitted for 
unauthorized transactions; and (2) adopting various customer service policies and 
practices and freezing accounts in an alleged effort to avoid statutory and regulatory 
obligations.  MCC ¶¶ 536, 539.  Both theories fail.     
First, Plaintiffs who failed to plead that they reported any unauthorized 
transaction or other transaction error (including those who simply allege that they 
reported “fraud”) have not alleged that BANA had any obligations under EFTA and 
Reg E, which apply only to “error resolution” and liability for unauthorized 
transactions.  See App’x Columns 1 & 2.   
Similarly, Plaintiffs have failed to allege that they satisfied the notice 
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MEMORANDUM OF POINTS AND  
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18 
CASE NO. 21-MD-02992-LAB-MSB 
 
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requirements of EFTA and Reg E.  Like the Account Agreement, EFTA and Reg E 
require that a cardholder notify BANA as to the reason “why the consumer believes 
an error exists.”  12 C.F.R. § 1005.11(b)(1)(iii); 15 U.S.C. § 1693f(a)(3).  The vast 
majority of Plaintiffs have failed to allege that they provided such notice.  App’x 
Column 3.  General allegations such as “presented evidence over the phone 
regarding the unauthorized transactions,” MCC ¶ 188, and “reported the fraud,” id. 
¶ 318, are insufficient to plead an EFTA violation.  See Ghalchi v. U.S. Bank, N.A., 
2015 WL 12655402, at *8 (C.D. Cal. Jan. 8, 2015) (dismissing EFTA claim where 
plaintiffs’ “description of her notice to Defendant only indicates that she ‘notified’ 
Defendant of ‘unauthorized withdrawals’ from her Checking Account’”); Shapiro 
v. Am.’s Credit Union, 2013 WL 5373269, at *2 (W.D. Wash. Sept. 25, 2013), 
aff’d, 650 F. App’x 447 (9th Cir. 2016) (dismissing Reg E claim with prejudice 
where plaintiff “presented no evidence that [he] notified [defendant] with sufficient 
particularity to constitute a proper EFTA ‘notice’”).  A mere recitation that 
Plaintiffs provided “reasons for their belief,” without identifying any reasons 
provided, is also insufficient.  See supra, p. 8 n.10.  Likewise, a number of 
Plaintiffs allege that they reported fraud well beyond the applicable EFTA deadline.  
See 12 C.F.R. § 1005.11(b)(1)(i) (notice must be “received by the institution no 
later than 60 days after the institution sends the periodic statement or provides the 
passbook documentation, required by § 1005.9, on which the alleged error is first 
reflected”); see, e.g., MCC ¶ 312 (plaintiff reported June 2020 fraudulent 
transactions in January 2021); id. ¶¶ 422, 435, 451.  
In addition, as noted above, a number of Plaintiffs have been fully 
reimbursed.  See App’x Column 4; Daniels Decl. ¶ 3.  These Plaintiffs do not have 
a cause of action under Section 1693g, which limits a consumer’s liability for 
unauthorized transactions, because they have incurred no liability at all (not even 
the amount of liability permitted by EFTA and Reg E).  See 15 U.S.C. § 1693g; 12 
C.F.R. § 1005.6.  They also do not have a live claim under Section 1693f, which 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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sets forth error resolution procedures, as BANA has remedied any concrete injury 
they may have suffered.  Gunn v. Thrasher, Buschmann & Voelkel, P.C., 982 F.3d 
1069, 1072 (7th Cir. 2020) (procedural violation of the Fair Debt Collection 
Practices Act did not confer standing in the absence of a concrete injury).  For lack 
of standing and pursuant to Rule 12(b)(1), those must be dismissed. 
Plaintiffs also fail to allege facts to support their assertion that BANA failed 
to conduct an investigation as required by EFTA and Reg E.  As with the contract 
claim, “on information and belief” allegations are insufficient.  See supra, p. 11 
n.14.  Plaintiffs level much of their attention on the Bank’s use of the Claim Fraud 
Filter, but all they allege about how that process purportedly violated the law is to 
offer pejoratives—asserting it was highly flawed, automated, summary and 
unreliable.  See, e.g., MCC ¶¶ 89, 93, 112.  Name-calling does not state a claim, 
particularly where neither EFTA nor Reg E prohibit the use of “automated” or 
allegedly “summary” measures.  See Chore-Time Equip., Inc. v. Cumberland Corp., 
713 F.2d 774, 781 (Fed. Cir. 1983) (declining to impose a requirement that 
“appears nowhere in the statute”).  Rather, what Plaintiffs do allege is that the Filter 
was intended to “determine if the claimant is using a stolen identity” (MCC ¶ 89), 
which undermines rather than states a claim that its use was unreasonable as a 
matter of law.  Plaintiffs have not alleged any facts to show  specifically how 
BANA’s investigation into their Claims, whether based on the Claim Fraud Filter 
or on other methods of investigation, actually did not meet a controlling legal 
standard under EFTA and Reg E.  See supra, Section I.  Accordingly, Plaintiffs’ 
EFTA and Reg E investigation claims must be dismissed.  See Chen v. Bank of Am., 
N.A., 2019 WL 9633650, at *7-8 (C.D. Cal. Oct. 29, 2019) (dismissing claim where 
plaintiff alleged that “the Bank ‘failed to investigate in good faith the fraudulent 
transactions,’” but “d[id] not allege details establishing any bad faith on [the 
Bank]’s part”); cf. DeWitt v. Cal. Citizens Redistricting Comm’n, 2016 WL 
3049732, at *3 (N.D. Cal. May 31, 2016), aff’d, 705 F. App’x 594 (9th Cir. 2017) 
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(dismissing claim where plaintiff alleged “no more than conclusory allegations” 
that the Secretary of State failed to investigate).     
Plaintiffs’ second theory—that the Bank froze accounts and took customer 
service actions to avoid its legal obligations—also fails.  EFTA and Reg E do not 
prohibit or place any limitations on the freezing of accounts.  They also do not 
require certain levels of customer service; there is no limit on wait times, or 
required hours of operation.  Plaintiffs cannot use the specific and well-defined 
requirements of EFTA and Reg E to impose expansive obligations that do not 
appear anywhere in the statute or the regulation.  See Chore-Time Equip., 713 F.2d 
at 781.  These allegations are therefore insufficient to state a claim under EFTA. 
Judge Chhabria’s prior order found that the Yick Plaintiffs had a “strong 
likelihood” of success under EFTA, for failing to conduct “an adequate, good faith 
investigation” and for account freezes.  Preliminary Order, at 1.  The latter finding 
is of no help to Plaintiffs, as EFTA does not even govern account freezes, as just 
explained.  With respect to investigations, the Order’s conclusions were not based 
on the MCC that is before this Court, which does not state a claim for all of the 
reasons already discussed, and the Order itself is summary and non-specific as to 
what conduct of the Bank the Court believed likely violated EFTA and Reg E.    
III. 
PLAINTIFFS FAIL TO STATE ANY CLAIM AS “THIRD-PARTY 
BENEFICIARIES” UNDER THE EDD AGREEMENT (COUNTS 11 AND 12). 
Plaintiffs’ claims for breach of contract and breach of the implied covenant 
of good faith and fair dealing based on the EDD Agreement fail as a matter of law. 
A. 
Plaintiffs Are Not Third-Party Beneficiaries.   
Plaintiffs are not entitled to enforce either the terms of the EDD Agreement or 
any implied covenant in that agreement because they are not third-party beneficiaries 
as a matter of law.  “[A] person seeking to enforce a contract as a third party 
beneficiary must plead a contract which was made expressly for his or her benefit 
and one in which it clearly appears that he or she was a beneficiary.”  The H.N. & 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Frances C. Berger Found. v. Perez, 218 Cal. App. 4th 37, 43–46 (2013) (internal 
alterations and quotations omitted).  Where, as here, individuals “benefit from a 
government contract,” they are “generally assumed to be incidental beneficiaries, 
rather than intended beneficiaries, and so may not enforce the contract absent a clear 
intent to the contrary.”  GECCMC 2005-C1 Plummer St. Office Ltd. P’ship v. 
JPMorgan Chase Bank, Nat’l Ass’n, 671 F.3d 1027, 1033 (9th Cir. 2012) (emphases 
added); Klamanth Water Users Protective Ass’n v. Patterson, 204 F.3d 1206, 1211 
(9th Cir. 1999) (quoting Restatement (Second) of Contracts § 302(1)(b) cmt. a) 
(“Government contracts often benefit the public, but individual members of the 
public are treated as incidental beneficiaries unless a different intention is 
manifested.”).  Indeed, there are millions of EDD benefits recipients, and Plaintiffs’ 
theory that each one of them is entitled to enforce the EDD Agreement would cripple 
EDD’s ability to administer its own benefits program.  Each individual benefits 
recipient would have the power to make public policy decisions about the 
administration of EDD benefits; for example, by seeking to prevent BANA from 
freezing cards, thereby allowing EDD’s benefit dollars to escape into the hands of 
criminal syndicates; to require BANA to issue chip cards;15 or by seeking to enforce 
their own interpretation of funding processes or requirements.  This is why courts 
must “examine the precise language of the contract for a clear intent to rebut the 
presumption that the third parties are merely incidental beneficiaries.”  GECCMC, 
671 F.3d at 1033 (internal alterations and quotations omitted).  No such intent is 
evident in the EDD Agreement, which specifies that BANA’s services are to be 
 
15 Indeed, Plaintiffs assert that all EDD Debit Cards should contain a chip, even 
though EDD recently announced that chip cards would be issued only for new or 
replacement cards.  About the EDD Debit Card, Cal. Emp. Dev. Dep’t, 
https://www.edd.ca.gov/About_EDD/The_EDD_Debit_Card.htm/RK=2/pdf/EDD_
Digital_Account_Fee_Disclosure_and_other_Important_Disclosures.pdf (last 
visited Oct. 1, 2021).  
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provided “for the EDD.”  Chestnut Decl., Ex. 2, at 2.16   
The California Supreme Court has already rejected Plaintiffs’ theory (MCC 
¶ 640) that they are intended third-party beneficiaries simply because they benefited 
from performance of the EDD Agreement.  In Goonewardene v. ADP, LLC, 6 Cal. 
5th 817, 835-37 (2019), the court held that an employee was not a third-party 
beneficiary of her employer’s contract with the payroll company that issued her 
paychecks.  As the court explained, the employee was entitled to wages regardless of 
her employer’s contract with the payroll company.  Thus, the “relevant motivating 
purpose of the contract [was] simply to assist the employer in its performance of its 
required tasks, not to provide a benefit to employees with regard to the amount of 
wages they receive.”  Id. at 835.  Similarly, here, the “relevant motivating purpose” 
of the EDD Agreement is to assist EDD in distributing benefits—not to provide 
recipients with benefits that they are entitled to receive from EDD regardless of 
EDD’s chosen distribution method.  See id.  
Plaintiffs also assert that allowing them to enforce the EDD Agreement would 
be “consistent with the objectives of the contract and the reasonable expectations of 
the contracting parties.”  MCC ¶ 640.  To the contrary, each EDD cardholder is party 
to their own Account Agreement with BANA—thus establishing the parties’ intent 
that cardholders enforce their own agreements with BANA, not EDD’s agreement.  
See Cleveland v. Ludwig Inst. for Cancer Rsch. Ltd., 2020 WL 3268578, at *10 (S.D. 
Cal. June 17, 2020) (dismissing third-party beneficiary breach of contract claim 
where plaintiffs could sue “under their own individual employment agreements”). 
B. 
Plaintiffs Fail To Allege A Breach Of The EDD Agreement.  
Plaintiffs also have not alleged facts that show a breach of the EDD 
Agreement.  Plaintiffs challenge BANA’s issuance of magnetic strip cards, MCC 
 
16 The EDD Agreement is properly considered here as it “forms the basis of the 
plaintiff’s claim” for breach of that agreement.  Steinle v. City & Cnty. of San 
Francisco, 919 F.3d 1154, 1162–63 (9th Cir. 2019). 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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¶ 642, but the EDD Agreement—which incorporates EDD’s own RFP—specifies the 
use of magnetic strip technology with no mention of chips.  Chestnut Decl., Ex. 2, at 
5 (Req. #323) (citing requirement for magnetic strip technology).  EDD has publicly 
confirmed that it chose magnetic strip technology over chip technology in its contract 
with BANA.  See supra, p. 5.  Plaintiffs’ remaining allegations are likewise 
insufficient because they do not identify any provisions of the EDD Agreement that 
were breached.  See Ironshore Specialty Ins. Co. v. 23andMe, Inc., 2018 WL 
5316173, at *2 (N.D. Cal. Oct. 26, 2018) (party “failed to allege facts sufficient to 
make out a plausible claim for breach of contract” where it did “not identify which 
provision or provision of the policy it believes [were] breached”).  Nor could they, 
particularly as to their customer service allegations, e.g. MCC ¶ 642, as the EDD 
Agreement was amended to excuse compliance with a number of provisions, 
including wait times for calls, in light of the pandemic.17  Chestnut Decl., Ex. 3, at 1.    
Plaintiffs’ claim for breach of an implied covenant in the EDD Agreement is 
equally unfounded.  As already discussed, supra, pp. 14-15, an implied duty cannot 
be used to expand or contradict obligations in an existing contract.  See Glenn-Colusa 
Irrigation Dist. v. U.S. Army Corps of Eng’rs, 2019 WL 3231748, at *5 (E.D. Cal. 
July 18, 2019) (implied duty “cannot expand a party’s contractual duties beyond 
those in the express contract or create duties inconsistent with the contract’s 
provisions”); Giron v. Wells Fargo Bank, N.A., 2014 WL 12589628, at *3 (C.D. Cal. 
May 27, 2014).  Therefore, Plaintiffs cannot assert that BANA breached the implied 
covenant by failing to issue chip cards, where the EDD Agreement specified 
magnetic strip cards.  See supra, p. 5.  Similarly, Plaintiffs cannot use the implied 
covenant to assert that BANA was obligated to provide levels of customer service 
beyond what the EDD Agreement (as amended) required.  See supra. 
 
17 That Plaintiffs seeks to enforce customer service requirements that EDD chose to 
excuse further underscores that Plaintiffs were not intended to have the ability to 
enforce the EDD Agreement.  
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MEMORANDUM OF POINTS AND  
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IV. 
PLAINTIFFS HAVE NOT STATED A CLAIM FOR NEGLIGENCE OR 
NEGLIGENT HIRING (COUNTS 5 & 6). 
Plaintiffs allege that BANA acted negligently by failing to (1) issue chip 
cards and “protect” the cardholders from fraud; (2) provide “effective” customer 
service; and (3) adequately investigate and provisionally credit their claims of 
unauthorized transactions.  MCC ¶ 587.  Plaintiffs also allege that BANA is liable 
for negligent hiring, supervision, and retention based on its use of subcontractors to 
provide customer service and “various” other functions under BANA’s contract 
with EDD.  MCC ¶ 595.  Both claims fails for three independent reasons.    
First, Plaintiffs’ negligence claims are barred by the economic loss doctrine, 
which generally limits liability for negligence to damages for physical injuries.  See 
S. Cal. Gas Leak Cases, 7 Cal. 5th 391, 402 (2019); Spa-Kur Therapy Dev., Inc. v. 
Bank of Am., N.A., 2019 WL 1099834 at *2 (S.D. Cal. Mar. 8, 2019) (“[P]laintiffs 
may recover in tort for physical injury to person or property, but not for ‘purely 
economic losses that may be recovered in a contract action.’”); Nev. Fleet LLC v. 
FedEx Corp., 2021 WL 2402953, at *7 (E.D. Cal. June 11, 20212) (dismissing 
claim for negligent hiring under the economic loss rule).  Economic losses “are 
primarily the domain of contract and warranty law or the law of fraud, rather than 
of” tort.  S. Cal. Gas Leak Cases, 7 Cal. 5th at 402.   
Thus, “[m]ultiple courts have applied the economic loss rule to bar a 
plaintiff's claim against a bank arising from fraudulent activity.”  Widjaja v. 
JPMorgan Chase Bank, 2020 WL 2949832, at *8 (C.D. Cal. Mar. 31, 2020); see 
Smith v. Visa U.S.A., Inc., 2011 WL 2709819, at *1–2 (N.D. Cal. July 12, 2011) 
(economic loss doctrine barred tort claim against a debit card provider based on 
allegations of harm caused by the company’s allegedly lax security procedures, 
which allowed “hackers to commit theft from multiple debit and credit card 
accounts”); Barvie v. Bank of Am., N.A., 2018 WL 4537723, at *5 (S.D. Cal. Sept. 
21, 2018) (barring tort claim against bank based on improper account withdrawals); 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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see also Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 WL 6523428, 
at *12 (S.D. Cal. Nov. 3, 2016) (economic loss doctrine barred tort claim based on 
defendant’s failure to exercise reasonable care in securing plaintiff’s personal 
information from hackers).  Applying these principles here, both of Plaintiffs’ 
negligence-based claims must be dismissed.  MCC ¶¶ 587, 601. 
Second, Plaintiffs’ negligence claims fail because Plaintiffs have not alleged 
facts to show that BANA owed them a tort duty.  Plaintiffs assert that BANA owed 
tort duties based on a purported “special relationship” between Plaintiffs and the 
Bank.  MCC ¶ 586.  But California courts have repeatedly held that “the bank-
depositor relationship is not a ‘special relationship.’”  Belluomini v. CitiGroup, Inc., 
2013 WL 3855589 (N.D. Cal. July 24, 2013) (citations omitted).  As a result, “[t]he 
relationship between the two [bank and depositor] is not fiduciary, but rather is 
contractual in nature.”  Simi Mgmt. Corp. v. Bank of Am., N.A., 930 F. Supp. 2d 
1082, 1100 (N.D. Cal. 2013).  Further, “[t]he failure to perform a contractual 
obligation is never a tort unless it constitutes a failure to perform an independent 
legal duty.”  Valenzuela v. ADT Sec. Servs., Inc., 820 F. Supp. 2d 1061, 1071 (C.D. 
Cal. 2010) (internal quotations and citations omitted).  Thus, as a matter of law, 
BANA owed Plaintiffs no tort duties that can form the basis of a negligence claim.   
Plaintiffs also assert that alleged violations of the California Consumer 
Privacy Act, the Gramm-Leach Bliley Act, the California Financial Information 
Privacy Act, and the California Consumer Records Act constitute negligence per se.  
MCC ¶ 589.  But negligence per se is “simply a codified evidentiary doctrine”; it 
does not provide an independent basis for relief in the absence of a viable 
negligence claim.  California v. Kinder Morgan Energy Partners, L.P., 569 F. 
Supp. 2d 1073 (S.D. Cal. 2008).  Moreover, Plaintiffs have not sufficiently alleged 
a violation of any of these four statutes.  For the Gramm-Leach-Bliley Act, 
Plaintiffs assert that BANA failed to comply with certain regulatory requirements 
regarding data security, but their allegations are based largely “[o]n information and 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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belief” with no supporting factual details; Plaintiffs fail to allege, for example, any 
facts about how information was actually stored or transmitted.  MCC ¶¶ 56, 579, 
580, 581, 589; see also infra, p. 30; Vivendi, 586 F.3d at 695 (allegations based 
“upon information and belief” are insufficient).  Plaintiffs’ allegations are even 
more scant with respect to the California Financial Information Privacy Act: 
Plaintiffs assert that the Bank disclosed Plaintiffs’ information to third parties, but 
nowhere do they allege when or in what context, or even to whom the information 
was released.  MCC ¶ 582.  As to the California Consumer Privacy Act and the 
California Consumer Records Act, Plaintiffs have not alleged a violation of those 
statutes for the reasons discussed below.  See infra, pp. 29-31.   
Third, both of Plaintiffs’ negligence-based claims fail because they do not 
allege facts sufficient to establish causation, which is a required element of a 
negligence claim. See Ileto v. Glock Inc., 349 F.3d 1191, 1203 (9th Cir. 2003); 
Phillips v. TLC Plumbing, Inc., 172 Cal. App. 4th 1133, 1140 (2009).  In particular, 
with respect to their core theory that BANA should have issued cards with chips, 
Plaintiffs have failed to allege any non-speculative facts to establish that use of 
chip-less cards caused their fraudulent transactions and losses.  See U.S. Commodity 
Futures Trading Comm’n v. Monex Credit Co., 931 F.3d 966, 972 (9th Cir. 2019) 
(claims must “move beyond speculation” for allegations to survive a motion to 
dismiss).  Indeed, the majority of Plaintiffs do not even describe how the 
supposedly fraudulent transaction occurred, and therefore have provided no factual 
basis for concluding that card technology played any role in the alleged fraud.  See, 
e.g., MCC ¶ 323.  Several Plaintiffs allege that they never received their cards in 
the first place, suggesting that they were stolen from the mail—meaning, again, that 
a chip would have made no difference.  See, e.g., MCC ¶ 287.    
As to their negligent hiring claim, Plaintiffs do not allege any facts to support 
either a breach or causation.  They claim that independent contractors committed “a 
series of internal data breaches,” but offer no support other than their speculation 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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that one Plaintiff’s cardholder information must have been stolen by Bank 
subcontractors because she alleges she never used her debit card.  MCC ¶¶ 58, 598; 
see Abdulaziz v. Twitter, Inc., 2020 WL 6947929, at *7 (N.D. Cal. Aug. 12, 2020) 
(dismissing negligent hiring claim because the plaintiff’s allegations were 
“conclusions, not facts”); see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, 
Inc., 591 F.3d 250, 259 (4th Cir. 2009) (affirming dismissal of defamation claim 
based on “nothing but [the plaintiff’s] speculation” that defendant must have been 
the author because plaintiff could not identify an alternative).  Not only are these 
allegations insufficient to establish a data breach, they are also insufficient to show 
that any Plaintiff suffered harm as a result of BANA’s practices in hiring, training, 
and supervising any subcontractor.  MCC ¶ 58.  Absent concrete factual allegations 
to support Plaintiffs “internal breach” theory, this claim must be dismissed.  See 
Townsend v. Bank of Am., N.A., 2009 WL 10671412, at *6 (C.D. Cal. Mar. 9, 2009) 
(dismissing negligent hiring claim where “Plaintiff’s bare, conclusory allegations 
are not sufficient to state a valid underlying theory of liability against Defendants or 
their employees”).  Further, to the extent Plaintiffs’ allegations rest on a “risk of 
fraud and exfiltration,” MCC ¶ 598 (emphasis added), they lack standing to seek 
relief based on a “conjectural and hypothetical” future harm.  See Summers v. Earth 
Island Inst., 555 U.S. 488, 493 (2009).  Plaintiffs have not alleged, as necessary, 
that any threatened injury is “certainly impending.”  Clapper v. Amnesty Int’l USA, 
568 U.S. 398, 409 (2013) (“allegations of possible future injury are not sufficient” 
(internal alterations and quotations omitted) (emphasis in original)).  
V. 
PLAINTIFFS HAVE NOT STATED A CLAIM FOR BREACH OF FIDUCIARY 
DUTY (COUNT 10). 
It is well settled that “under ordinary circumstances the relationship between 
a Bank and its depositor . . . is not a fiduciary one.”  Lawrence v. Bank of Am., 163 
Cal. App. 3d 431, 437 (1985); see Oaks Mgmt. Corp. v. Superior Ct., 145 Cal. App. 
4th 453, 466 (2006) (“in ordinary banking transactions the ‘bank is in no sense a 
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MEMORANDUM OF POINTS AND  
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CASE NO. 21-MD-02992-LAB-MSB 
 
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true fiduciary’”); Bernardo v. U.S. Bank Nat. Ass’n, 2011 WL 3667475, at *4 (N.D. 
Cal. Aug. 22, 2011); Simi Mgmt. Corp., 930 F. Supp. 2d at 1100 (“A bank has 
limited duties to its customers. The relationship between the two is not fiduciary, 
but rather is contractual in nature.”).   
Plaintiffs nevertheless assert that BANA owes a fiduciary duty because it is 
“charged with implementing EDD benefits programs.”  MCC ¶ 631.  They assert 
that their relationship with BANA is somehow different from an ordinary bank-
customer relationship because BANA allegedly had “unbridled access to [their] 
personal, confidential, and financial information,” an “absolute ability” to control 
Plaintiffs’ account data, and “delegated authority” to deny Plaintiffs access to EDD 
benefits.  Id.  These allegations are insufficient to transform the contractual 
relationship between BANA and EDD cardholders into a fiduciary one. 
To start, Plaintiffs have not shown how access to personal or financial 
information—the type of information that customers routinely provide to obtain 
banking services—somehow renders BANA a fiduciary.  If access to personal and 
financial information and the ability to control account data sufficed to create a 
fiduciary relationship, then all banks would be fiduciaries for their customers.  That 
is not the case.  Chazen v. Centennial Bank, 61 Cal. App. 4th 532, 537 (1998) 
(“banks are not fiduciaries for their depositors” (internal quotation marks omitted)).   
Moreover, Plaintiffs have not alleged facts to show that EDD “delegated 
authority” to BANA to “deny” Plaintiffs access to their benefits (which Plaintiffs 
agreed to be distributed through the debit card), nor do they explain how such 
authority, even if it existed, would give rise to a fiduciary duty.  Indeed, Plaintiffs 
allege that EDD, not BANA, approved them for benefits, MCC ¶¶ 1, 47 n.1, but 
they do not assert that EDD owes fiduciary duties to the millions of EDD benefits 
recipients.  Plaintiffs also allege that cardholders are able to receive benefits checks 
from EDD even if BANA has frozen their accounts.  See, e.g., MCC ¶¶ 100, 174, 
318, 433, 452.  There is no legal basis for imposing a fiduciary duty on a financial 
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institution simply because an account contains funds received from a government 
benefits program.  Under Plaintiffs’ theory, any bank that accepted a direct deposit 
for unemployment benefits, or a subsequent transfer of those funds, would be a 
fiduciary.  Such a broad imposition of a fiduciary duty would be in direct 
contradiction to the general rule that banks are not fiduciaries.  See supra, pp. 27-
28.  Plaintiffs’ fiduciary duty claim must be dismissed. 
VI. 
PLAINTIFFS HAVE NOT STATED A CLAIM FOR VIOLATION OF THE 
CALIFORNIA CONSUMER PRIVACY ACT OR THE CALIFORNIA CUSTOMER 
RECORDS ACT (COUNTS 2 AND 3). 
Plaintiffs’ claim under the California Consumer Privacy Act (“CCPA”), Cal. 
Civ. Code §§ 1798.100 et seq., is based on three theories: (1) the use of debit cards 
without EMV chips; (2) “collecting,” “transmitting,” and “storing” Plaintiffs’ 
personal information in an allegedly unsecure manner; and (3) an alleged failure to 
ensure that subcontractors maintained the confidentiality of Plaintiffs’ personal 
information.  MCC ¶ 553.  All three theories fail as to all Plaintiffs. 
First, Plaintiffs’ theory that the CCPA imposed a duty to issue EDD Debit 
Cards with EMV chip technology, MCC ¶ 547, 553, is novel and entirely 
unsupported.  The CCPA creates a right of action for a consumer whose 
“nonencrypted or nonredacted personal information . . . is subject to an 
unauthorized access and exfiltration, theft, or disclosure as a result of the business’s 
violation of the duty to implement and maintain reasonable security procedures.”  
Cal. Civ. Code § 1798.150(a)(1).  The CCPA does not “impose[]” a new duty, but 
rather incorporates “existing law requir[ing] a business … to implement and 
maintain reasonable security procedures and practices appropriate to the nature of 
the information[.]”  S. Judiciary Comm. Rep. on A.B. 375 (June 25, 2018), at 5 
(citing Cal. Civ. Code § 1798.81.5(b), (e)) (emphasis added).  There is no existing 
duty on financial institutions to issue cards with EMV chips instead of magnetic 
strips.  Indeed, the EDD Agreement confirms the absence of any duty to issue a 
chip card, as the State itself chose only to require magnetic strip technology (under 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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an ISO standard Plaintiffs do not dispute that the debit cards met).  See supra, p. 5.  
Nevertheless, Plaintiffs’ CCPA claim asks the Court to impose a duty on every 
financial institution that issues cards in this State to include chip technology.  There 
is no support for such a duty and no basis for a federal court to create one.18   
Second, Plaintiffs’ two other theories of CCPA liability are entirely lacking 
in any factual support.  Plaintiffs vaguely assert that BANA collected, transmitted, 
and stored Plaintiffs’ and Class Members’ personal information in an unsecure 
fashion, thereby allowing “unauthorized third parties to access that information in 
violation of the CCPA,” MCC ¶¶ 551–54, but offer no facts regarding how BANA 
collected, transmitted, or stored their information (other than the allegations 
regarding chip cards, which fail for the reasons explained above).  Similarly, 
Plaintiffs allege no facts to support their theory that BANA’s subcontractors failed 
to maintain the security of Plaintiffs’ information.  See supra, pp. 26-27.  Plaintiffs 
merely plead “[o]n information and belief” that BANA was not sufficiently careful 
with Plaintiffs’ personal information, and thereby “permitted unauthorized third 
parties to access that information.”  MCC ¶ 551–54.  But allegations “on 
information and belief” are not sufficient.  Vivendi, 586 F.3d at 695.  Moreover, 
Plaintiffs do not plead facts to show that the allegedly compromised information 
was “nonencrypted or nonredacted,” which is a necessary condition of liability.  
Cal. Civ. Code § 1798.150(a)(1).  Plaintiffs have raised “nothing more than vague, 
conclusory allegations unsupported by any facts.”  Fronda v. Staffmark Holdings, 
Inc., 2015 WL 3866860, at *2 (N.D. Cal. June 22, 2015).    
Plaintiffs’ claim for violation of the California Customer Records Act 
(“CRA”), Cal. Civ. Code §§ 1798.80 et seq., similarly fails because it is speculative 
and unsupported by any facts.  The CRA imposes notification requirements on 
businesses that have suffered a data breach, id. § 1798.82, but Plaintiffs do not 
 
18 Plaintiffs also have not alleged facts to show that they suffered any “unauthorized 
access . .. as a result of” the use of the magnetic strip cards.  See infra, p. 31. 
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allege a single fact to support their conclusory assertion that a breach actually 
occurred.  MCC ¶¶ 562–74.  They hypothesize that a breach must have occurred 
because one of the plaintiffs alleges that her card information was compromised 
even though she states that she never used her debit card.  See id. ¶¶ 20, 58.  That 
speculative assumption is insufficient to withstand a motion to dismiss.  See supra, 
pp. 26-27.  Moreover, Plaintiffs fail to allege facts to establish “when Defendants 
discovered” the purported breach, and therefore “have not adequately alleged that 
Defendants ‘unreasonably delay[ed]’ in notifying Plaintiffs” of the breach.  In re 
Yahoo! Inc. Customer Data Sec. Breach Litig., 2017 WL 3727318, at *38 (N.D. 
Cal. Sept. 22, 2020) (dismissing CRA claim that “does not contain any allegations 
about when Defendants discovered or were notified of the [alleged] breach” 
(internal alterations and quotations omitted)).19  
VII. PLAINTIFFS HAVE NOT STATED A CLAIM FOR VIOLATION OF THE 
CALIFORNIA UNFAIR COMPETITION LAW (COUNT 4). 
California’s Unfair Competition Law (“UCL”) prohibits “three varieties of 
unfair competition—acts or practices which are unlawful, or unfair, or fraudulent.”  
Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1168 (9th Cir. 2012).  Plaintiffs 
assert claims under the “unlawful” and “unfair” prongs, but neither theory is viable.   
A. 
The UCL Does Not Provide for the Relief Sought by Plaintiffs.   
First, the Court should dismiss BANA’s UCL claim because the UCL is 
equitable in nature and provides for only two forms of relief: injunctive relief and 
restitution.  See Hyp3r Inc. v. Mogimo Inc., 2017 WL 11515712, at *4 (N.D. Cal. 
Nov. 8, 2017); Haynish v. Bank of Am., N.A., 284 F. Supp. 3d 1037, 1052 (N.D. Cal. 
2018).  Plaintiffs are not entitled to either.  
“Where the claims pleaded by a plaintiff may entitle her to an adequate remedy 
 
19 BANA asked Plaintiffs’ counsel to provide the information they claimed to have 
received about a speculative data breach, in order to allow BANA to investigate and 
remedy any breach.  Not only did Plaintiffs’ counsel refuse to do so, they have also 
failed to allege any such facts in the MCC. 
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at law, equitable relief is unavailable” under the UCL.  Huynh v. Quora, Inc., 508 F. 
Supp. 3d 633, 662 (N.D. Cal. 2020).  Plaintiffs’ UCL claim does not raise any new 
or different issues from their other causes of action; the availability of monetary 
damages for those causes of action demonstrates that Plaintiffs would have an 
adequate remedy at law, if they had facts to support their claims.  They are therefore 
not entitled to seek additional or different relief under the UCL.  See Sonner v. 
Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); Huynh, 508 F. Supp. 3d 
at 662 (N.D. Cal. Dec. 21, 2020) (granting summary judgment for defendant where 
plaintiff “fails to allege or demonstrate that any remedy at law is inadequate” and 
brought damages claim based on same alleged conduct); Gibson v. Jaguar Land 
Rover N. Am., LLC, 2020 WL 5492990, at *3–4 (C.D. Cal. Sept. 9, 2020) (plaintiffs’ 
failure to “allege[] facts that could support a finding that monetary relief is 
insufficient … [was] fatal to” UCL claim).  
Even if Plaintiffs could show that their UCL claim was based on different 
allegations (which they cannot, based on their MCC), they still are not entitled to any 
UCL relief.  Plaintiffs’ proposed injunction prohibiting unspecified practices and 
requiring unspecified measures (MCC ¶ 584) does not state a claim for any relief 
under the UCL, see, e.g., Cohen v. Capital One, N.A., 2015 WL 12746217, at *11 
(C.D. Cal. June 1, 2015), and their request for “processing” of Claims is an 
impermissible attempt to shoehorn a damages claim—a request that Claims be paid—
into a request for injunctive relief.  See Korea Supply Co. v. Lockheed Martin Corp., 
29 Cal. 4th 1134, 1144 (2003) (“A UCL action is equitable in nature; damages cannot 
be recovered.”); Herskowitz v. Apple, Inc., 301 F.R.D. 460, 482 (N.D. Cal. 2014) 
(“[A] plaintiff cannot transform a claim for damages into an equitable action by 
asking for an injunction that orders the payment of money.”).   
Plaintiffs’ claim for restitution also fails because the thing to be “restituted,” 
funds from their debit card accounts, were allegedly taken by the third party criminals 
who performed the unauthorized transactions, and not by BANA.  See, e.g., MCC 
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¶¶ 74–79.  The UCL does not allow for the disgorgement of profits from a defendant 
where “the money sought to be disgorged was not taken from plaintiff.”  Korea 
Supply Co., 29 Cal. 4th at 1144–45.  The account freezes do not provide any basis 
for restitution either, as Plaintiffs do not allege that BANA takes their funds when it 
freezes an account, only that Plaintiffs are unable to access the funds during the 
period of time when their accounts are frozen.  See, e.g., MCC ¶¶ 169, 191; see also 
In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 903 F. Supp. 2d 
942, 970 (S.D. Cal. 2012) (“Sony did not benefit financially from the Data Breach, 
nor did Sony receive monies paid by Plaintiffs for Third Party Services.”); Chose v. 
Accor Hotels & Resorts (Maryland) LLC, 2020 WL 759365, at *6 (N.D. Cal. Feb. 
14, 2020) (“Plaintiff does not allege that she—or any other members of the putative 
class—actually paid Defendant any money.”). 
B. 
Plaintiffs Have Not Adequately Alleged A Violation of the UCL. 
Even if Plaintiffs could somehow get past the fact that UCL authorized none 
of the relief they seek, they fail to adequately allege any violation of the statute. 
1. 
Plaintiffs Have Not Adequately Alleged “Unlawful” Acts. 
Plaintiffs’ claim under the “unlawful” prong fails because they have not 
adequately alleged any violation of law.  Major v. Wells Fargo Bank, N.A., 2014 
WL 4103936, at *7 (S.D. Cal. Aug. 18, 2014) (“[T]o be ‘unlawful’ under [the 
UCL], the conduct must violate another ‘borrowed’ law.”) (quoting Cel-Tech 
Comms. Inc. v. L.A. Cellular Tel. Co., 20 Cal. 4th 163, 180 (1999)) (Burns, J.).  
Plaintiffs allege violations of Due Process, EFTA/Reg E, CCPA, CRA, the Gramm-
Leach-Bliley Act, and California Financial Information Privacy Act, but they have 
failed to adequately allege any of these primary violations.  See supra, Sections II, 
IV, VI; infra, Section VIII; see also Baba v. Hewlett-Packard Co., 2010 WL 
2486353, at *6 (N.D. Cal. June 16, 2010) (“In California, a UCL claim of any kind 
‘must identify the particular section of the statute that was violated, and must 
describe with reasonable particularity the facts supporting the violation.’”).   
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2. 
Plaintiffs Have Not Adequately Alleged “Unfair” Acts. 
Plaintiffs have likewise failed to adequately allege that BANA engaged in 
“unfair” acts in violation of the UCL.  Plaintiffs provide a laundry list of allegedly 
“unfair” practices revolving around BANA’s (1) procedures for maintaining, storing, 
and transmitting Plaintiffs’ information, including its issuance of magnetic strip 
cards; (2)  alleged failure to monitor and detect fraud; (3)  investigation and 
resolution of Plaintiffs’ claims; (4) customer service practices; and (5) freezing or 
blocking of accounts.  See MCC ¶ 577.  Just like the implied covenant and implied 
contract claims, these allegations attempt to create out of whole cloth a litany of 
vague and standardless obligations that no contract or law requires.   
As this Court has already recognized, “[w]hat constitutes unfair conduct in 
consumer actions under the UCL is unclear.”  Klaehn v. Cali Bamboo, LLC, 2020 
WL 3971518, at *8 (S.D. Cal. July 13, 2020) (Burns, J.).  Some courts consider a 
practice to be “unfair” if it “offends an established public policy” or is “immoral, 
unethical, oppressive, unscrupulous or substantially injurious to customers.”  Davis, 
691 F.3d at 1169.  Others look at whether a consumer injury is “substantial,” “not 
outweighed by any countervailing benefits to consumers or competition,” or “one 
that consumers themselves could not reasonably have avoided.”  Klaehn, 2020 WL 
3971518, at *8 (internal quotation omitted).  “Under another approach, California 
courts balance the impact on its alleged victim against the reasons, justifications, and 
motives of the alleged wrongdoer.”  Id. (internal alterations and quotations omitted).   
Plaintiffs have not alleged facts to support a finding of any practice that rises 
to the level of “unfair” under the UCL.  The use of magnetic strip cards does not 
offend an “established” public policy in California, particularly when those cards 
were specifically required by the State.20  See supra, p. 5.  Plaintiffs’ complaints 
 
20 It is also worth noting that Plaintiffs knew, when they received their cards, that 
the cards did not have a chip.  See, e.g., MCC ¶¶ 9–33.  They still chose to activate 
their cards, see, e.g., id. ¶¶ 200, 282, 478, instead of asking EDD for a check.   
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about customer service also do not establish unfairness: Plaintiffs’ theory would 
allow any consumer dissatisfied with a company’s customer service to bring a UCL 
claim, and that decidedly is not the law.  McKinney v. Google, Inc., 2011 WL 
3862120, at *7 (N.D. Cal. 2011) (assertion “that customer service was inadequate” 
was insufficient to state a claim under UCL’s “unfair” prong).   
As for BANA’s fraud monitoring and Claim investigation practices, Plaintiffs’ 
allegations, at bottom, are that BANA erroneously identified some of them as having 
committed fraud rather than being victims of fraud.  Plaintiffs do not dispute that 
BANA should act to detect and deter fraud, see, e.g., MCC ¶¶ 80, 86,21 and making 
strong efforts to prevent widespread public benefits fraud clearly do not offend any 
public policy.  Indeed, when the impact of a frozen account or denied Claim is 
considered not only against the various avenues available to allow affected 
cardholders to regain access to their accounts and recover their funds, but also against 
the explosion of fraud that BANA was attempting to combat, the balancing approach 
to unfairness—indeed, any approach—compels the conclusion that Plaintiffs have 
failed to state a claim that BANA’s efforts were “unfair.”   
As for Plaintiffs’ assertion that BANA violated the UCL by freezing accounts, 
those actions were expressly permitted by the Account Agreement.  See supra, 
Section I.  The unfairness prong of the UCL “does not give the courts a general 
license to review the fairness of contracts.”  Quezada v. Franklin Madison Grp., LLC, 
2020 WL 5819824, at *6 (S.D. Cal. Sept. 29, 2020) (Burns, J.) (quoting S. Bay 
Chevrolet v. Gen Motors Acceptance Corp., 72 Cal. App. 4th 861, 887 (1999)).  Thus, 
a UCL claim must be dismissed where the allegedly unfair conduct “was permitted 
by the contract.”  Quattrocchi v. Allstate Indem. Co., 2018 WL 347779, at *2 (E.D. 
Cal. Jan. 9, 2018), aff’d, 775 F. App’x 330 (9th Cir. 2019) (collecting cases).    
 
21 Plaintiffs’ assertion that BANA failed to conduct any fraud monitoring is 
inconsistent with individual Plaintiffs’ allegations that BANA froze accounts based 
on BANA’s internal fraud monitoring procedures.  See, e.g., MCC ¶¶ 420, 488. 
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MEMORANDUM OF POINTS AND  
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VIII. PLAINTIFFS HAVE NOT STATED A DUE PROCESS CLAIM (COUNTS 13 & 14). 
Finally, Plaintiffs bring claims for due process violations against BANA, 
asserting that BANA failed to provide sufficient notice before freezing their 
accounts (though not all allege frozen accounts, see App’x Column 6).  But a 
plaintiff seeking relief under 42 U.S.C. § 1983 for violation of the United States 
Constitution must show that she was “deprived of a right secured by the 
Constitution or laws of the United States,” and that “the alleged deprivation was 
committed under color of state law.”  Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 
40, 49–50 (1999).  The requirements under the California Constitution are the 
same.  Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 356 (1974).  Here, Plaintiffs 
have not adequately alleged that BANA was acting as a state actor when it froze 
their accounts, nor have they sufficiently alleged that due process would require 
notice and a pre-deprivation hearing under these extraordinary circumstances.  
A. 
Plaintiffs Have Not Alleged Facts Sufficient To Establish That 
Bank Of America Is A State Actor. 
To start, it is important to note that Plaintiffs are not challenging any account 
freezes that were requested by the State.  See MCC ¶ 50 (“None of those EDD-
initiated freezes are at issue in this case.”).  Rather, their theory is that BANA has 
frozen accounts or maintained freezes where the State did not take an action to ask 
or agree that the accounts be frozen.  See, e.g., id. ¶¶ 52–53, 528 (alleging “Failure 
to Unfreeze Subclass” based on accounts that were not unfrozen or unblocked after 
EDD allegedly “instructed” BANA to do so).  The allegations necessarily defeat the 
claim that BANA engaged in state action.  Nevertheless, Plaintiffs assert that 
BANA is a state actor because it “performs a traditional and exclusively 
governmental function” and “is engaged in a joint undertaking with the State” in 
administering EDD benefits.  Id. ¶¶ 654, 659.  Both arguments are meritless.  
First, a public function is one “traditionally exclusively reserved to the 
State”; “very few” functions satisfy this standard.  Flagg Bros., Inc. v. Brooks, 436 
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MEMORANDUM OF POINTS AND  
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U.S. 149, 157, 158 (1978).  Plaintiffs have failed to allege any facts that would 
transform BANA’s servicing of their debit card accounts—a classic function of a 
private bank—into a function that is both traditionally and exclusively 
governmental.  See, e.g., Belue v. Keefe Commissary Grp., LLC, 2021 WL 
1197749, at * (D. Idaho Mar. 29, 2021) (“[M]aintaining or managing financial 
accounts is not a function that is traditionally and exclusively performed by the 
government.”); Venegas v. Bianco, 2019 WL 10301094, at *9 (C.D. Cal. Aug. 26, 
2019) (same); see also Hester v. Regions Bank, 2010 WL 2232158, at *5 (M.D. 
Ala. June 3, 2010) (“[T]he actions in question are the freezing of private bank 
accounts, and the transfer of funds, which are not traditionally the exclusive 
prerogative of the state.”).  The State did not delegate a traditional government 
duty—rather, it outsourced banking work that the State is not able to do itself.  It 
does not matter that the debit cards are used to distribute public benefits; merely 
“serv[ing] the public does not make [a private actor’s actions] state action.”  
Renderall-Baker v. Kohn, 457 U.S. 830, 842 (1982); see also Gonzalez-Maldonado 
v. MMM Healthcare, Inc., 693 F.3d 244, 248 (1st Cir. 2012) (private entity does not 
become a state actor merely because it manages government funds).  Otherwise, 
every government contractor would become a state actor, which in turn would deter 
private companies, like financial institutions, from assisting the state in distributing 
much-needed benefits during times of crisis, whether under the CARES Act or in 
the aftermath of a devastating hurricane or fire or for other government programs.  
Plaintiffs nonetheless assert that freezing a private bank account was a 
governmental function because its effect was to “cut[] off their access” to already 
issued benefits, and “suspend[] their receipt of any future EDD benefits to which 
they may be entitled.”  MCC ¶ 656.  But once funds are deposited into a prepaid 
debit card account, they are the property of the cardholder, and EDD has no further 
rights to the funds (subject to limited exceptions).  See Chestnut Decl., Ex. 1 , § 2.  
If a private banking function transformed into a governmental function simply 
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because it affected privately-owned funds that originated from the State, any bank 
would become a state actor merely by allowing government employees to deposit 
their paychecks (or allowing any other recipient of the myriad forms of government 
aid to deposit their benefits).  That sweeping reformulation of “state action” runs 
counter to the Supreme Court’s narrow definition of public functions.  See, e.g., 
Flagg Bros., 436 U.S. at 157.  As for the theory that an account freeze “cuts off” 
future benefits, those benefits originate from EDD, not BANA, and the prepaid 
debit card is merely one way benefits recipients can choose to receive them.  
Plaintiffs can choose instead to receive checks from EDD; some already have.  See, 
e.g., MCC ¶¶ 174, 328, 433.  Freezing an account does not “cut off” future benefits; 
at most, it just means the recipient may decide to choose another method to receive 
those benefits (rather than pursue the unfreezing of the account).  
Second, joint action exists only if the private actor’s actions are “inextricably 
intertwined with those of the government.”  Pasadena Republican Club v. W. Just. 
Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021) (internal quotations omitted), petition for 
cert. docketed, No. 20-55093 (U.S. June 16, 2021).  Here, however, Plaintiffs allege 
that the account freezes they challenge were not endorsed by the State.  MCC ¶¶ 50, 
52, 53, 528.  Actions taken independently of the State cannot qualify as a joint 
undertaking.  See Sullivan, 526 U.S. at 52 (private insurers not state actors where 
state “authorizes, but does not require” withholding of payment); Pasadena, 985 
F.3d at 1171 (private club not a state actor where City did not participate in the 
club’s allegedly unconstitutional cancellation of a speaking event); Brunette v. 
Humane Soc’y of Ventura Cty., 294 F.3d 1205, 1208, 1212 (9th Cir. 2002) (private 
party and a “quasi-public” entity “acted independently” where neither “assisted the 
other in performance of its separate and respective task”).   
The EDD Agreement does not create a joint undertaking, standing alone.  
“[M]erely contracting with the government does not transform an otherwise private 
party into a state actor.”  Pasadena, 985 F.3d at 1170; see also Kohn, 457 U.S. at 
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MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
39 
CASE NO. 21-MD-02992-LAB-MSB 
 
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841 (private corporation whose business depended primarily on state contracts did 
not become a state actor solely because of its “significant or even total engagement 
in performing public contracts”); Black by Black v. Indiana Area Sch. Dist., 985 
F.2d 707, 710–11 (3d Cir. 1993) (contractor and employees not “state actors” in 
carrying out state sponsored program with state compensation).  Plaintiffs point to 
the so-called “revenue-sharing agreement” in which there is “no cost to the State,” 
while BANA collects fees and earns interest.  MCC ¶ 49.  This arrangement (which 
is not even accurately described in the MCC) does not demonstrate the necessary 
“significant financial integration,” which requires a showing that the private entity’s 
financial success “depends” on the arrangement with the State, or vice versa.  See 
Pasadena, 985 F.3d at 1168 (contractor’s maintenance services at Air Force base 
were “most certainly not an indispensable element in the Air Force’s financial 
success”); Brunette, 294 F.3d at 1213–14 (private news company did not “render[] 
any service indispensable to the Humane Society’s continued financial viability”).  
Indeed, Plaintiffs’ allegation that a joint undertaking results from a contractual 
agreement that creates a “mutually beneficial relationship” (¶ 654) would mean that 
any private entity that contracts with the state becomes a state actor, as all contracts 
must be supported by mutual consideration and contractual relationships are 
therefore all mutually beneficial.  That is not the law.  See Pasadena, 985 F.3d at 
1170.  Plaintiffs’ allegations “fall[] far short of creating the substantial 
interdependence legally required to create a symbiotic relationship,” Brunette, 294 
F.3d at 1214.  
B. 
Plaintiffs Have Not Alleged Any Due Process Violation. 
Even if BANA were somehow deemed a state actor, Plaintiffs have failed to 
adequately allege any due process violation.  The scope of procedural protections 
required by due process depends upon the “particular situation” or circumstances at 
issue.  Mathews v. Eldridge, 424 U.S. 319, 334 (1976).  Plaintiffs focus on the 
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MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
40 
CASE NO. 21-MD-02992-LAB-MSB 
 
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freezing of some of their accounts, but fail to allege any facts to show that notice or 
additional procedures are required where accounts were being frozen to investigate 
“suspect[ed] irregular, unauthorized, or unlawful activities” during a time of 
substantial fraud directed at a government benefits program.  Chestnut Decl., Ex. 1, 
§ 2.  The Supreme Court has held that “[a]n important government interest, 
accompanied by substantial assurance that the deprivation is not baseless or 
unwarranted, may in limited cases demanding prompt action justify postponing the 
opportunity to be heard until after the initial deprivation.”  Fed. Deposit Ins. Co. v. 
Mallen, 486 U.S. 230, 240 (1988).  The alternative Plaintiffs seems to embrace 
would be to provide advance notice of a planned freeze and some opportunity to 
contest it—which undoubtedly would have guaranteed that accounts controlled by 
fraudsters would be drained to a zero balance immediately.  Here, BANA has a 
compelling interest in preventing fraud, and it is not only reasonable, but logical, to 
freeze accounts without advance notice to “avoid the risk that [the cardholder] 
would dissipate his assets or attempt to put them beyond the government’s reach.”  
Spiegel v. Ryan, 946 F.2d 1435, 1440 (9th Cir. 1991).  Providing advance notice 
would directly undermine the whole point of an account freeze, which is to protect 
the assets in an account.22  Plaintiffs’ apparent lack of concern for that result may 
be understandable in a way, as they believe they would have been able to avoid a 
freeze in all events, but a due process claim cannot be so narrowly drawn.   
CONCLUSION 
For all of the foregoing reasons, BANA respectfully requests that the Court 
dismiss Plaintiffs’ Consolidated Complaint with prejudice. 
 
 
 
 
 
22 To the extent Plaintiffs argue that they received insufficient post-deprivation 
process, their own allegations show the ability to unfreeze their accounts.  See, e.g., 
MCC ¶ 340 (“[T]he Bank unfroze [Delgado’s] Account.”); ¶ 193 (“[W]ilson was 
able to get the Bank to unfreeze his account.”).   
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.590     Page
52 of 64

 
MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
41 
CASE NO. 21-MD-02992-LAB-MSB 
 
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Dated:   October 1, 2021 
Respectfully submitted, 
 
By: s/ Yvonne W. Chan  
 
 
 
 LAURA A. STOLL (SBN 255023) 
LStoll@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 South Figueroa Street, 41st Floor 
Los Angeles, California  90017 
Tel.: +1 213 426 2500 
Fax: +1 213 623 1673 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
YVONNE W. CHAN (pro hac vice) 
YChan@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
ARLENE R. YANG (SBN 297450) 
ayang@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
BARRY W. LEE (SBN 088685) 
bwlee@manatt.com  
MANATT PHELPS & PHILLIPS LLP  
One Embarcadero Center, 30th Floor  
San Francisco, CA 94111  
Tel.: +1 415 291 7450  
Fax: +1 415 291 7474 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.591     Page
53 of 64

 
MEMORANDUM OF POINTS AND  
AUTHORITIES ISO MOTION TO DISMISS 
42 
CASE NO. 21-MD-02992-LAB-MSB 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on October 1, 2021.  I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by 
the CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
Executed: 
October 1, 2021 
 
s/  Yvonne W. Chan 
 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.592     Page
54 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
Abarr
Paul
¶ 286
X
X
Abbot
Kobe
¶ 287
X
X
Adams
Michael
¶ 289
X
X
Aders
Jordan
¶ 288
X
X
Aguirre
Jonathan
¶ 290
X
X
Allison
Christopher
¶ 291
X
X
Alvarez
Kevin
¶ 292
X
Alvarez
Courtney
¶ 293
X
X
Alvarez
Rosa
¶ 294
X
X
X
Anderson
David
¶ 295
X
X
X
Anderson
Rebekah
¶ 296
X
X
Andrade
Amanda
¶ 297
X
X
Anistik
Sheila
¶ 299
X
X
X
Arnoldstarr
Robert
¶ 300
X
X
Arrey
Vanessa
¶ 301
X
X
Auburn
Ursula
¶¶ 254-257
X
X
X
X
Ayala
Christal
¶ 302
X
X
Back
Celina
¶ 303
X
X
Baker
Cindy
¶¶ 250-253
X
X
X
Barnettte
Mark
¶ 304
X
X
Beckham
Douglas
¶ 305
X
X
Beehler
Sky
¶ 306
X
X
Bennett
Amber
¶ 307
X
X
Berlt
Forrest
¶ 308
X
X
X
Blacksands
Stone
¶ 309
X
X
Blankenship
Claire
¶¶ 279-284
X
X
Bommel
Dean
¶ 310
X
X
Brady
Nicholas
¶ 311
X
PLAINTIFF
APPENDIX
1
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55 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Brooks
James
¶ 312
X
Brotman
Adam
¶ 313
X
X
Bruno
James
¶ 314
X
X
X
Burns
Beth
¶ 315
X
X
Burrow
Dwight
¶ 316
X
X
Bynum
Mario
¶ 317
X
X
Byrn
Daniel
¶ 318
X
X
Cajas
Clara
¶¶ 195-199
X
X
Calzado
Joseph
¶ 319
X
Camberos
Stacey
¶ 320
X
X
Cardenas Cortez
Victor
¶ 333
X
X
Carpenter
Kimberly
¶ 321
X
X
X
Castillo
Patricia
¶ 322
X
X
X
Caton
Richard
¶ 323
X
X
Chapple
Susan
¶ 324
X
X
Chase
Randy
¶ 325
X
X
Chavez
Angela
¶ 326
X
X
Chavez
Phillip
¶ 327
X
X
Chong
Kuang Ting
¶¶ 261-267
X
X
X
X
Cochran
Tiffany
¶ 328
X
X
Collins
LaMar
¶ 329
X
X
Contreras
Jennifer
¶ 330
X
X
Contreras
Jose
¶ 331
X
X
Corella
Donmonique
¶ 332
X
X
Cortez-Gonzalez
Crystal
¶ 334
X
X
D’Agostino Criado
Teresa
¶ 335
X
X
Dale
Heather
¶ 336
X
X
De Hoyos
Marcus
¶ 400
X
X
2
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56 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
De Los Angeles, Sr.
Samuel
¶ 298
X
X
de Vera
Michell
¶ 337
X
X
X
Deasy
Timothy
¶ 338
X
X
Delariva
Luis
¶ 339
X
X
Delgado
Delbert
¶ 340
X
X
Delgado
Selena
¶ 341
X
X
Dirickson
Nickolaus
¶ 342
X
X
Dones
Lorina
¶ 343
X
X
Douglas
Anthony
¶ 344
X
X
Douglass
Benjamin
¶ 345
X
X
X
Duey
Kayli
¶ 346
X
X
Eason
Roxanne
¶ 347
X
X
Echeverria
Peter
¶ 348
X
X
Edwards
Linda
¶ 349
X
X
Escalante
Maritza
¶ 350
X
X
X
Espalin
Marley
¶ 351
X
X
Estrada
Juan
¶ 352
X
X
Farina
Dawn
¶ 353
X
X
X
Ferraro
Cody
¶ 354
X
X
Flores
Jacob
¶ 355
X
X
Flores
Arnold
¶ 356
X
X
Flores
Stephanie
¶ 357
X
X
Franks
Anthony
¶ 358
X
X
Friday
Meredith
¶ 359
X
X
X
Friend
Joseph
¶ 360
X
X
Gage
Latisha
¶ 362
X
X
Galicia
Abigail
¶ 361
X
X
Garcia
Monica
¶ 363
X
X
3
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57 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Gaynor
Glynda
¶ 364
X
X
George
Laquitta
¶ 365
X
X
Giddens
Elizabeth
¶ 366
X
X
Glassflowers
Seante
¶ 367
X
X
X
Gonzalez
Angela
¶ 368
X
X
Gonzalez
Barton
¶ 369
X
X
X
Gonzalez
Lizet
¶ 370
X
X
Graham
Lainie Ann
¶ 371
X
X
Grant
Audrey
¶ 372
X
X
Gray
Willie
¶ 373
X
X
X
Grimes
Sean
¶ 374
X
X
Guadalajara
Jeffrey
¶ 375
X
X
Guirguis
Noah
¶ 376
X
X
Gutcher
Lyndsey
¶ 377
X
X
Gutierrez
Andres
¶ 378
X
X
Gutierrez
Angelica
¶ 379
X
Gutierrez
Crystal
¶ 380
X
X
Hakopian
Shant
¶ 381
X
X
Hanes
James
¶ 382
X
X
X
Haney
Micah
¶ 383
X
X
Hanna
Preston
¶ 384
X
X
X
Harden
Rebecca
¶ 385
X
X
Harper
Johnny
¶ 386
X
X
Harris
Ivan
¶ 387
X
X
Harris
Markee
¶ 388
X
X
X
Hart
Steven
¶ 389
X
X
Hassanshahi
Bahram
¶ 390
X
X
Hayden
Kaytricia
¶ 391
X
X
X
4
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58 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Heinz
Gretchen
¶ 392
X
X
X
Hernandez
Ronnie
¶ 393
X
X
Hernandez
Ruben
¶ 394
X
X
Hernandez
Vanessa
¶ 395
X
Hicks
Julie
¶¶ 258-260
X
X
Hollingsworth
Anthony
¶ 396
X
X
Holloway
Lindsie
¶ 397
X
X
Horath
Crystal
¶ 398
X
X
Howze
Terrance
¶ 399
X
X
Hutchins
Sharonna
¶ 401
X
X
Huynh
Quoc
¶ 402
X
X
Idemudia
John
¶ 403
X
X
Isles
Juanita
¶ 404
X
X
Jabara
Derrick
¶ 405
X
X
Jackson
Shreel
¶ 406
X
X
X
Jaurigue, Jr.
Robert
¶ 407
X
X
Jeff
Anthony
¶ 408
X
X
Johnson
Evett
¶ 409
X
X
X
Johnson
Lester
¶ 410
X
X
Johnson
Terrell
¶ 411
X
X
Jones
Brian
¶ 412
X
X
Jones
Victoria
¶ 413
X
X
Karam
Alan
¶¶ 203-215
X
X
X
Kelly
Olivia
¶ 414
X
X
Kessler
Erick
¶ 415
X
X
Knight
Deandre
¶ 416
X
X
Koole
Candace
¶¶ 136-143
X
X
Lawson
Corey
¶ 417
X
X
X
5
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59 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Laxton
Sabrina
¶ 418
X
X
Lind
Tonya
¶ 419
X
X
Littles
Limmie
¶ 420
X
X
Lopez
Ronda
¶ 421
X
X
Loredo
Ernie
¶ 422
X
X
Madrid
Raina
¶ 423
X
X
Madrid
Mario
¶ 424
X
X
Magallan
Joseph
¶ 425
X
X
Main
Joseph
¶ 426
X
X
Martinez
Danela
¶ 427
X
X
Mathews
Rosemary
¶¶ 160-170
X
X
X
Matson, Jr.
Russell
¶ 428
X
X
Matthews
Vernon
¶ 429
X
X
Maurer
Janelle
¶ 430
X
X
McCafferty
Christina
¶ 431
X
X
McCann
Brenda
¶ 432
X
X
McClure
Lindsay
¶¶ 187-191
X
X
McCrary
Michael
¶ 434
X
X
X
Meza
Jennifer
¶ 433
X
Middleton
Travis
¶ 435
X
X
Miller
Linda
¶ 436
X
X
X
Moon
Azuri
¶¶ 144-151
X
X
X
Moore
Stephanie
¶¶ 268-273
X
X
X
Moore
Lavell
¶ 437
X
X
Morales
Sara
¶ 438
X
X
Morales
Albert
¶ 439
X
X
Morgan
Sharise
¶ 440
X
X
Morrell
Tiffiany
¶ 441
X
X
X
6
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COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Morris
Heather
¶ 442
X
X
Mouck
Janette
¶ 443
X
X
Murphy
Robert
¶ 444
X
X
X
Murphy
Sarah
¶ 445
X
X
Nicholson
Kimberly
¶ 446
X
X
Ojeda
Lelanya
¶ 447
X
X
Oosthuizen
Roland
¶¶ 152-159
X
X
Ortiz, Jr.
Frank
¶ 448
X
X
Owen
Kelly
¶ 449
X
X
Owensby
Mark
¶ 450
X
X
X
Paningbatan
Flouzel
¶ 451
X
X
Payton
Laura
¶ 452
X
X
Pena, Jr. 
Ismael
¶ 453
X
X
Perez
Luis
¶¶ 216-224
X
X
X
Perez
Ann
¶ 454
X
X
Perez
Paul
¶ 455
X
X
Perkins
Kenyon
¶ 456
X
X
Petrova
Zinaida
¶¶ 274-278
X
Piette
Melanie
¶ 457
X
X
X
Pita
Ryan
¶ 458
X
X
Pitts
Darnell
¶ 459
X
X
Pitts
Vannessa
¶ 460
X
X
Pointer
Misty
¶ 461
X
X
X
X
Pomeroy
Tina
¶ 462
X
X
Posten
Randle
¶ 463
X
X
Pummill
Joshua
¶ 464
X
X
Quesada
Andrea
¶ 465
X
X
X
Quiroz
Maurilio
¶ 466
X
X
7
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COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Raiff
Mykela
¶ 467
X
X
Ray
Moaney
¶ 468
X
X
Reed
Kawana
¶ 469
X
X
X
Rima-Fleurima
Nehemiah
¶ 470
X
X
Ritchey
Rhonda
¶ 471
X
X
Rivera
Vanessa
¶¶ 127-135
X
X
X
Rivera
Israel
¶ 472
X
X
X
Roa
Miguel
¶ 473
X
X
Robinson
Carmen
¶ 474
X
X
Robinson
Stanley
¶ 475
X
X
Robles
Joe
¶ 476
X
X
Rodriguez
Carlos
¶¶ 171-176
X
X
X
Rodriguez
Catrina
¶ 477
X
X
Rodriguez Romo
Jose
¶ 479
X
X
X
Rojas de Charolet
Elana Martina
¶ 478
X
X
X
Royston
Melissa
¶ 480
X
X
Salaz
Raylene
¶ 481
X
X
Salazar
Miguel
¶ 482
X
X
X
Saldate
Frankie
¶ 483
X
X
Schmidt
Michael
¶ 484
X
X
X
X
Schmitz
Timothy
¶ 485
X
X
Serrato
Melissa
¶ 486
X
X
Sevilla
Arminda
¶ 487
X
X
X
Silva
Jenna
¶ 488
X
X
Simpson
Jessica
¶ 489
X
X
Sims II
Michael
¶ 490
X
X
Smith
Stephanie
¶¶ 200-202
X
X
X
Smith
Jonathan
¶¶ 229-236
X
X
X
8
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.600     Page
62 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Smith
Denise
¶ 491
X
X
X
Smith
Nicole
¶ 492
X
X
Sparks
Jonathan
¶ 493
X
X
Stanfill
Amy
¶ 494
X
X
Stephens
Lucas
¶ 495
X
X
Stidham
Crystal
¶ 496
X
X
X
Talia
Danny
¶ 497
X
X
Tamayo
Cesar
¶ 498
X
X
X
Taylor
Michelle
¶ 499
X
X
X
Taylor
Tonya
¶ 500
X
X
Tonna
Nicholas
¶ 501
X
X
Trammel
Tasha
¶ 502
X
X
X
Tressler
Jimmy
¶ 503
X
X
Turnbull
Jason
¶ 504
X
X
Turner
Thomas
¶ 505
X
X
Valadez
Reina
¶ 506
X
X
Valenzuela
Juan
¶ 507
X
X
Vasquez
David
¶ 508
X
X
Verdun
Jessie
¶ 509
X
X
X
Villagomez
Manuel
¶ 510
X
X
Viramontes
Luis
¶ 511
X
X
Walker
Norman
¶ 512
X
X
Wallace
Jason
¶ 513
X
X
Wiggins
Brian
¶¶ 225-228
X
X
X
Wilburn
Cameren
¶ 514
X
X
Wilds
Denise
¶ 515
X
X
X
Wilkins
Terrence
¶ 516
X
X
Williams
Zacharia
¶ 517
X
X
9
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.601     Page
63 of 64

COLUMN 1
COLUMN 2
COLUMN 3
COLUMN 4
COLUMN 5
COLUMN 6
Last Name
First Name
MCC 
Paragraph(s)
Does Not Allege That 
They Reported Fraud 
To BANA
Alleges Reporting 
"Fraud" Only 
Does Not Allege 
Providing Required 
Information To BANA
Alleges They Have 
Been Reimbursed
Does Not Allege That 
Fraud Filter Was 
Used To Deny Claim
Does Not Allege 
Account Was Ever 
Frozen Or Blocked
PLAINTIFF
Williams
Tyrisha
¶ 518
X
X
Williams
Willie
¶ 519
X
X
Williamson
Latasha
¶ 520
X
X
Willis
Leanna
¶ 521
X
X
Willrich
J. Michael
¶¶ 177-186
X
X
Wilson
Robert L.
¶¶ 192-194
X
X
X
Wise
Lacey
¶ 522
X
X
Wood
Colton
¶ 523
X
X
Yeats
Matthew
¶ 524
X
X
Yick
Jennifer
¶¶ 114-126
X
X
X
Young
Glen
¶ 525
X
X
Yuan
Alex
¶¶ 237-245
X
X
X
Zettlemoyer
Christopher
¶ 526
X
X
Zoelle
Jory
¶¶ 246-249
X
X
10
Case 3:21-md-02992-GPC-MSB     Document 84-1     Filed 10/01/21     PageID.602     Page
64 of 64

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