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Home Court filings In re: Bank of America California Unemployment Benefits Litigation — S.D. Cal., No. 21-md-02992 RESPONSE in Opposition re 84 MOTION to Dismiss for Lack of Jurisdiction MOTION to… — Bo…

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RESPONSE in Opposition re 84 MOTION to Dismiss for Lack of Jurisdiction MOTION to… — Bofa Ca Unemployment (Dkt. 90)

Record facts

CourtU.S. District Court for the Southern District of California
Filed2021-11-15

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 90 · 2021-11-15 · Docket on CourtListener

Summary

Plaintiffs' opposition to the defendant's motion to dismiss the master consolidated complaint in In re Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-LAB-MSB, filed November 15, 2021 as Document 90 in the U.S. District Court for the Southern District of California. The 68-page brief is submitted by co-lead counsel from Cotchett, Pitre & McCarthy, LLP and Altshuler Berzon LLP and notices the motion for hearing January 10, 2022 before the Hon. Larry Alan Burns. Its table of contents sets out sections arguing that plaintiffs state claims under EFTA and Regulation E, for breach of contract, as third-party beneficiaries of the EDD-BofA contract, under the CCPA and CCRA, for negligence and negligent supervision, for breach of fiduciary duty, under the UCL, and for violations of due process. A table of authorities and a signature certification follow.

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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint;  
Case No. 3:21-md-02992-LAB-MSB 
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JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
ANDREW F. KIRTLEY (SBN 328023) 
akirtley@cpmlegal.com 
KAIYI A. XIE (SBN 311182) 
kxie@cpmlegal.com 
COTCHETT, PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
STACEY M. LEYTON (SBN 203827) 
sleyton@altber.com 
MATTHEW MURRAY (SBN 271461) 
mmurray@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
CHRISTINE SALAZAR (SBN 330468) 
csalazar@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
(Additional Counsel Listed Below) 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-LAB-MSB 
 
OPPOSITION TO DEFENDANT’S 
MOTION TO DISMISS MASTER 
CONSOLIDATED COMPLAINT
 
This Document Relates to All Actions 
 
Date: 
January 10, 2022 
Time: 
11:30 a.m. 
Crtm: 
14A – 14th Floor 
Judge: 
Hon. Larry Alan Burns 
 
ORAL ARGUMENT REQUESTED
 
 
 
 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint;  
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TABLE OF CONTENTS 
Page(s) 
INTRODUCTION .................................................................................................................... 1 
LEGAL STANDARDS ............................................................................................................ 4 
ARGUMENT ............................................................................................................................. 5 
I. 
Plaintiffs State Claims Under EFTA/Regulation E (Count 1) .............. 5 
A. Plaintiffs Provided Sufficient Notice under EFTA. ............................. 6 
B. Plaintiffs Adequately Allege that BofA Denied Claims Without 
Having Conducted a Reasonable, Good Faith Investigation. .............. 8 
C. BofA’s Systemic EFTA and Contract Violations Caused  
Concrete Injuries That Were Not Redressed by Reimbursement. ..... 10 
D. All Plaintiffs Reported “Errors” Within the Scope of EFTA. ........... 13 
II. 
Plaintiffs State Breach of Contract Claims (Counts 7, 8, 9) ................ 14 
A. Plaintiffs State a Claim for Breach of the Cardholder Agreement. ... 14 
B. Plaintiffs State a Claim for Breach of Implied Contract.................... 16 
C. Plaintiffs State a Claim for Breach of the Implied Covenant of  
Good Faith and Fair Dealing.............................................................. 18 
III. 
Plaintiffs State Claims for Breach of the EDD-BofA Contract as 
Third-Party Beneficiaries (Counts 11, 12) ............................................ 20 
A. Plaintiffs Adequately Plead Third-Party Beneficiary Standing. ........ 20 
B. Plaintiffs Adequately Plead Breach of the EDD-BofA Contract  
and the Implied Covenant of Good Faith and Fair Dealing. ............. 22 
IV. 
Plaintiffs State Claims under the CCPA and CCRA (Counts 2, 3) .... 25 
V. 
Plaintiffs State Claims for Negligence and Negligent Supervision 
(Counts 5, 6).............................................................................................. 28 
A. The Economic Loss Rule Does Not Apply. ....................................... 28 
B. Plaintiffs Adequately Allege Negligence. ......................................... 33 
C. Plaintiffs Have Standing to Pursue Injunctive Relief. ....................... 36 
VI. 
Plaintiffs State a Claim for Breach of Fiduciary Duty (Count 10) ..... 38 
VII. Plaintiffs State Claims for Violations of the UCL (Count 4) ............... 39 
A. Plaintiffs Adequately Allege “Unlawful” and “Unfair” Acts or  
Practices. ............................................................................................ 40 
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B. Plaintiffs Adequately Plead Their Entitlement to Injunctive Relief 
and Restitution. .................................................................................. 43 
VIII. Plaintiffs State Claims for Violations of Due Process  
(Counts 13, 14).......................................................................................... 44 
A. Plaintiffs Adequately Allege State Action. ........................................ 44 
B. Plaintiffs Adequately Allege Due Process Violations. ...................... 48 
CONCLUSION ........................................................................................................................ 50 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
 
Cases 
3500 Sepulveda, LLC v. Macy’s W. Stores, Inc., 
980 F.3d 1317 (9th Cir. 2020) ........................................................................... 18 
Aas v. Superior Court, 
24 Cal.4th 627 (2000), superseded by statute on other grounds ...................... 30 
Abdulaziz v. Twitter, Inc., 
2020 WL 6947929 (N.D. Cal. Aug. 12, 2020) .................................................. 35 
In re Adobe Sys., Inc. Priv. Litig., 
66 F.Supp.3d 1197 (N.D. Cal. 2014)................................................................. 37 
Am. Fed’n of Labor v. EDD, 
88 Cal.App.3d 811 (1979) .......................................................................... passim 
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 
526 U.S. 40 (1999) ............................................................................................ 46 
Amaral v. Cintas Corp. No. 2, 
163 Cal.App.4th 1157 (2008), rev. denied ........................................................ 22 
In re Anthem, Inc. Data Breach Litig., 
162 F.Supp.3d 953 (N.D. Cal. 2016)................................................................. 41 
Badie v. Bank of Am., 
67 Cal.App.4th 779 (1998), rev. denied ............................................................ 19 
Bass v. Facebook, Inc., 
394 F.Supp.3d 1024 (N.D. Cal. 2019) .............................................................. 29 
Bates v. United Parcel Serv., Inc., 
511 F.3d 974 (9th Cir. 2007) (en banc) ......................................................... 5, 10 
Bell Atl. Corp. v. Twombly, 
550 U.S. 544 (2007) .......................................................................................... 13 
Belluomini v. Citigroup, Inc., 
2013 WL 3855589 (N.D. Cal. July 24, 2013) ................................................... 32 
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Belue v. Keefe Commissary Grp., LLC, 
2021 WL 1197749 (D. Idaho Mar. 29, 2021) ................................................... 46 
Black by Black v. Indiana Area Sch. Dist., 
985 F.2d 707 (3d Cir. 1993) .............................................................................. 47 
Bozzio v. EMI Grp., 
811 F.3d 1144 (9th Cir. 2016) ........................................................................... 20 
In re Brinker Data Incident Litig., 
2020 WL 691848 (M.D. Fla. Jan. 27, 2020) ..................................................... 25 
Brooks v. Bank of Am., N.A., 
2021 WL 1541643 (S.D. Cal. Apr. 20, 2021) ................................................... 41 
Brown v. Stored Value Cards, Inc., 
2016 WL 4491836 (D. Or. Aug. 25, 2016), rev’d on other 
grounds, 953 F.3d 567 (9th Cir. 2020) .............................................................. 45 
Brunette v. Humane Soc’y of Ventura Cnty., 
294 F.3d 1205 (9th Cir. 2002) ........................................................................... 47 
Buckeye Tree Lodge & Sequoia Vill. Inn, LLC v. Expedia, Inc., 
2019 WL 1170489 (N.D. Cal. Mar. 13, 2019) .................................................. 11 
Burton v. Wilmington Parking Auth., 
365 U.S. 715 (1961) .......................................................................................... 48 
Cahoo v. SAS Inst. Inc., 
322 F.Supp.3d 772 (E.D. Mich. 2018), aff’d in part, rev’d in part 
on other grounds, 912 F.3d 887 (6th Cir. 2019) ......................................... 44, 47 
Cal. Dep’t of Human Res. Dev. v. Java, 
402 U.S. 121 (1971) .......................................................................................... 41 
Cal. Spine & Neurosurgery Inst. v. United Healthcare Ins. Co., 
2019 WL 4450842 (N.D. Cal. Sept. 17, 2019) .................................................. 17 
Candelore v. Tinder, Inc., 
19 Cal.App.5th 1138 (2018) .............................................................................. 40 
Carma Developers (Cal.) Inc., v. Marathon Dev. Cal., Inc., 
2 Cal.4th 342 (1992) .......................................................................................... 18 
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Castanares v. Deutsche Lufthansa AG, 
2021 WL 811455 (C.D. Cal. Jan. 26, 2021) ...................................................... 12 
Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. Co., 
20 Cal.4th 163 (1999) .................................................................................. 39, 40 
Cent. Delta Water Agency v. United States, 
306 F.3d 938 (9th Cir. 2002) ............................................................................. 36 
Chang v. Redding Bank of Commerce, 
29 Cal.App.4th 673 (1994) ................................................................................ 39 
Chazen v. Centennial Bank, 
61 Cal.App.4th 532 (1998) ................................................................................ 17 
Chen v. Allstate Ins. Co., 
819 F.3d 1136 (9th Cir. 2016) ..................................................................... 11, 12 
Clapper v. Amnesty Int’l USA, 
133 S.Ct. 1138 (2013) ................................................................................. 37, 38 
Clayworth v. Pfizer, Inc., 
49 Cal.4th 758 (2010) ........................................................................................ 43 
Cleveland v. Ludwig Inst. for Cancer Research Ltd., 
2020 WL 3268578 (S.D. Cal. June 17, 2020) ............................................. 21, 22 
Copesky v. Superior Court, 
229 Cal.App.3d 678 (1991) ......................................................................... 38, 39 
Corona v. Sony Pictures Ent., Inc., 
2015 WL 3916744 (C.D. Cal. June 15, 2015) ............................................. 31, 34 
Cortez v. Purolator Air Filtration Prods. Co., 
23 Cal.4th 163 (2000) ........................................................................................ 43 
Curtis v. Propel Prop. Tax Funding, LLC, 
915 F.3d 234 (4th Cir. 2019) ............................................................................. 12 
De La Torre v. CashCall, Inc., 
5 Cal.5th 966 (2018) .......................................................................................... 42 
Deerpoint Grp., Inc. v. Agrigenix, LLC, 
393 F.Supp.3d 968 (E.D. Cal. 2019) ................................................................. 20 
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Desertrain v. City of Los Angeles, 
754 F.3d 1147 (9th Cir. 2014) ........................................................................... 50 
Dieffenbach v. Barnes & Noble, Inc., 
887 F.3d 826 (7th Cir. 2018) ............................................................................. 12 
Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 
2016 WL 6523428 (S.D. Cal. Nov. 3, 2016) .................................................... 25 
Edelson v. Travel Ins. Int’l, Inc., 
2021 WL 4334075 (S.D. Cal. Sept. 23, 2021) .................................................. 43 
Erhart v. BofI Holding, Inc., 
2020 WL 1550207 (S.D. Cal. Mar. 31, 2020) ................................................... 29 
Erlich v. Menezes, 
21 Cal.4th 543 (1999) ........................................................................................ 29 
Fed. Deposit Ins. Corp. v. Mallen, 
486 U.S. 230 (1988) .......................................................................................... 49 
Flores-Mendez v. Zoosk, Inc., 
2021 WL 308543 (N.D. Cal. Jan. 30, 2021) ............................................... 34, 35 
Gale v. Hyde Park Bank, 
384 F.3d 451 (7th Cir. 2004) ............................................................................. 10 
Garcia v. Ocwen Loan Servicing, LLC, 
2010 WL 1881098 (N.D. Cal. May 10, 2010) .................................................. 31 
GECCMC 2005-C1 Plummer St. Office L.P. v. JPMorgan Chase Bank, N.A., 
671 F.3d 1027 (9th Cir. 2012) ........................................................................... 22 
Geneva Tower Tenants Org. v. Federated Mortg. Invs., 
504 F.2d 483 (9th Cir. 1974) ............................................................................. 47 
Ghalchi v. U.S. Bank, N.A., 
2015 WL 12655402 (C.D. Cal. Jan. 8, 2015) ...................................................... 6 
Gibson v. Jaguar Land Rover N. Am., LLC, 
2020 WL 5492990 (C.D. Cal. Sept. 9, 2020) .................................................... 43 
Goldberg v. Kelly, 
397 U.S. 254 (1970) .................................................................................... 49, 50 
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Gonzalez-Maldonado v. MMM Healthcare, Inc., 
693 F.3d 244 (1st Cir. 2012) ............................................................................. 46 
Goonewardene v. ADP, LLC, 
6 Cal.5th 817 (2019) .......................................................................................... 21 
Grandesign Advertising Firm, Inc. v. Talon US (Grandesign) LLC, 
2021 WL 780477 (S.D. Cal. Mar. 1, 2021) ................................................ passim 
Hawkins v. Bank of Am., N.A., 
2018 WL 1316160 (S.D. Cal. Mar. 14, 2018) ................................................... 17 
Heredia v. Sunrise Senior Living LLC, 
2021 WL 819159 (C.D. Cal. Feb. 10, 2021) ..................................................... 43 
Hester v. Regions Bank, 
2010 WL 2232158 (M.D. Ala. June 3, 2010) ................................................... 46 
Huynh v. Quora, Inc., 
2020 WL 7408230 (N.D. Cal. June 1, 2020) .............................................. 31, 32 
Huynh v. Quora, Inc., 
508 F.Supp.3d 633 (N.D. Cal. 2020)..................................................... 31, 32, 43 
Ironshore Specialty Ins. Co. v. 23andMe, Inc., 
2018 WL 5316173 (N.D. Cal. Oct. 26, 2018) ................................................... 24 
J’Aire Corp. v. Gregory, 
24 Cal.3d 799 (1979) ................................................................................... 29, 30 
Jacobs v. Tenneco W., Inc., 
186 Cal.App.3d 1413 (1986) ............................................................................... 7 
Karter v. Epiq Sys., Inc., 
2021 WL 4353274 (C.D. Cal. July 16, 2021) ................................................... 27 
Klamath Water Users Protective Ass’n v. Patterson, 
204 F.3d 1206 (9th Cir. 1999) ........................................................................... 22 
Korea Supply Co. v. Lockheed Martin Corp., 
29 Cal.4th 1134 (2003) ...................................................................................... 44 
Krottner v. Starbucks Corp., 
628 F.3d 1139 (9th Cir. 2010) ........................................................................... 37 
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Kudokas v. Balkus, 
26 Cal.App.3d 744 (1972) ................................................................................. 38 
Lazy Y Ranch Ltd. v. Behrens, 
546 F.3d 580 (9th Cir. 2008) ............................................................................... 4 
Lee v. City of Los Angeles, 
250 F.3d 668 (9th Cir. 2001) ............................................................................. 23 
Lewert v. P.F. Chang’s China Bistro, Inc., 
819 F.3d 963 (7th Cir. 2016) ............................................................................. 37 
Lozano v. AT&T Wireless Servs., Inc., 
504 F.3d 718 (9th Cir. 2007) ............................................................................. 41 
Magadia v. Wal-Mart Assocs., Inc., 
999 F.3d 668 (9th Cir. 2021) ............................................................................. 12 
Mathews v. Eldridge, 
424 U.S. 319 (1976) .......................................................................................... 48 
Moeller v. Superior Court, 
16 Cal.4th 1124 (1997) ...................................................................................... 39 
Moore v. Mars Petcare US, Inc., 
966 F.3d 1007 (9th Cir. 2020) ........................................................................... 22 
Moran v. Prime Healthcare Mgmt., Inc., 
3 Cal.App.5th 1131 (2016) ................................................................................ 42 
Moser v. Health Ins. Innovations, Inc., 
2018 WL 325112 (S.D. Cal. Jan. 5, 2018) ........................................................ 35 
N. Am. Chem. Co. v. Superior Court, 
59 Cal.App.4th 764 (1997) ................................................................................ 28 
Naoko Ohno v. Yuko Yasuma, 
723 F.3d 984 (9th Cir. 2013) ............................................................................. 47 
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 
591 F.3d 250 (4th Cir. 2009) ............................................................................. 35 
Nowlon v. Koram Ins. Ctr., Inc., 
1 Cal.App.4th 1437 (1991) ................................................................................ 34 
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Pac. Concours Corp. v. Fives Machining Sys., Inc., 
2018 WL 6204579 (C.D. Cal. Oct. 29, 2018) ............................................. 29, 30 
Park v. Thompson, 
851 F.3d 910 (9th Cir. 2017) ............................................................................. 35 
Park v. Webloyalty.com, Inc., 
2019 WL 1227062 (S.D. Cal. Mar. 15, 2019) ................................................... 12 
Pasadena Republican Club v. W. Justice Ctr., 
985 F.3d 1161 (9th Cir. 2021) ..................................................................... 47, 48 
Peak-Las Positas Partners v. Bollag, 
172 Cal.App.4th 101 (2009) .............................................................................. 19 
Portier v. NEO Tech. Solutions, 
2019 WL 7946103 (D. Mass. Dec. 31, 2019) ....................................... 31, 35, 36 
Prouty v. Gores Tech. Grp., 
121 Cal.App.4th 1225 (2004) ............................................................................ 22 
Rawson v. Recovery Innovations, Inc., 
975 F.3d 742 (9th Cir. 2020) ....................................................................... 44, 45 
Remijas v. Neiman Marcus Grp., LLC, 
794 F.3d 688 (7th Cir. 2015) ............................................................................. 37 
Roberts v. Corrothers, 
812 F.2d 1173 (9th Cir. 1987) ............................................................................. 5 
Robertson v. Allied Sols., LLC, 
902 F.3d 690 (7th Cir. 2018) ............................................................................. 12 
Ross v. Bank of Am., N.A.(USA), 
524 F.3d 217 (2d Cir. 2008) .............................................................................. 36 
S. Cal. Gas Leak Cases, 
7 Cal.5th 391 (2019) .......................................................................................... 29 
Schmitt v. SN Servicing Corp., 
2021 WL 3493754 (N.D. Cal. Aug. 9, 2021) .................................................... 33 
Schnall v. Hertz Corp., 
78 Cal.App.4th 1144 (2000) .............................................................................. 40 
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SEIU, Local 99 v. Options, 
200 Cal.App.4th 869 (2011) .............................................................................. 22 
Shapiro v. Am’s Credit Union,  
2013 WL 5373269 (W.D. Wash. Sept. 25, 2013) ............................................... 6 
Shell v. Schmidt, 
126 Cal.App.2d 279 (1954) ............................................................................... 20 
Sisley v. Spring Commc’ns Co., 
284 F.App’x 463 (9th Cir. 2008) ....................................................................... 12 
Smith v. State Farm Mut. Auto. Ins. Co., 
93 Cal.App.4th 700 (2001) ................................................................................ 42 
In re Solara Med. Supplies, LLC Customer Data Sec. Breach Litig., 
2020 WL 2214152 (S.D. Cal. May 7, 2020) ............................................... 40, 41 
Sonner v. Premier Nutrition Corp., 
971 F.3d 834 (9th Cir. 2020) ............................................................................. 43 
In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 
996 F.Supp.2d 942 (S.D. Cal. 2014) ................................................................. 37 
South Bay Chevrolet v. Gen. Motors Acceptance Corp., 
72 Cal.App.4th 861 (1999) ................................................................................ 42 
Spiegel v. Ryan, 
946 F.2d 1435 (9th Cir. 1991) ........................................................................... 49 
Spokeo, Inc. v. Robins,  
578 U.S. 330 (2016) .......................................................................................... 36 
Stasi v. Immediata Health Grp., 
501 F.Supp.3d 898 (S.D. Cal. 2020) ..................................................... 20, 29, 35 
Susan B. Anthony List v. Driehaus,  
573 U.S. 149 (2014) .......................................................................................... 36 
Swift v. Lewis, 
901 F.2d 730 (9th Cir. 1990), superseded by statute on other grounds ............ 47 
T.K. v. Adobe Sys. Inc., 
2018 WL 1812200 (N.D. Cal. Apr. 17, 2018) .................................................. 12 
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B.K. ex. rel. Tinsley v. Snyder, 
922 F.3d 957 (9th Cir. 2019) ............................................................................. 15 
Top Trade v. Grocery Outlet, 
2018 WL 6038297 (C.D. Cal. May 9, 2018) ..................................................... 36 
Tsao v. Desert Palace, Inc., 
698 F.3d 1128 (9th Cir. 2012) ........................................................................... 47 
Van v. LLR, Inc., 
962 F.3d 1160 (9th Cir. 2020) ........................................................................... 12 
Venegas v. Bianco, 
2019 WL 10301094 (C.D. Cal. Aug. 26, 2019) ................................................ 46 
Vepo Design Corp. v. Am. Econ. Ins. Co., 
2020 WL 10689644 (C.D. Cal. Aug. 7, 2020) .................................................. 20 
Wallis v. Superior Court, 
160 Cal.App.3d 1109 (1984) ............................................................................. 39 
Webster v. HSBC Bank USA Nat’l Ass’n, 
2012 WL 13012700 (C.D. Cal. Mar. 5, 2012) ............................................ 17, 18 
West v. Atkins, 
487 U.S. 42 (1988) ............................................................................................ 45 
Whitmore v. Arkansas, 
495 U.S. 149 (1990) .......................................................................................... 36 
Wildin v. FCA US LLC, 
2018 WL 3032986 (S.D. Cal. June 19, 2018) ................................................... 43 
In re Yahoo! Inc. Customer Data Sec. Breach Litig., 
2017 WL 3727318 (N.D. Cal. Aug. 30, 2017) ............................................ 27, 28 
In re Yahoo! Inc. Customer Data Sec. Breach Litig., 
313 F.Supp.3d 1113 (N.D. Cal. 2018) .............................................................. 32 
Zemola v. Carrington Tea Co., LLC, 
2017 WL 4922974 (S.D. Cal. Oct. 30, 2017) .................................................... 41 
Zigas v. Superior Court, 
120 Cal.App.3d 827 (1981) ......................................................................... 20, 21 
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Statutes 
Electronic Fund Transfer Act of 1978,  
15 U.S.C. §1693 et seq.  ............................................................................. passim 
 
§1693(b) ............................................................................................................. 41 
 
§1693f .................................................................................................................. 8 
 
§1693f(a), (d) ..................................................................................................... 10 
 
§1693f(e) ......................................................................................................... 8, 9 
 
§1693f(e)(1)-(2) ................................................................................................. 10 
 
§1693m(a)(2) ..................................................................................................... 11 
 
§1693f(e) ........................................................................................................... 11 
 
§1693f(f)(6) ....................................................................................................... 13 
Gramm-Leach-Bliley Act,  
15 U.S.C. §6801 et seq. ................................................................... 29, 30, 34, 40 
Cal. Civ. Code §1643.............................................................................................. 16 
California Consumer Privacy Act,  
Cal. Civ. Code §1798.100 et seq. ............................................................... passim 
 
§1798.150(a)(1) ........................................................................................... 25, 26 
 
§1798.192 .......................................................................................................... 27 
California Customer Records Act,  
Cal. Civ. Code §1798.80 et seq. ................................................................. passim 
 
§1798.81.5(b)..................................................................................................... 26 
California Financial Information Privacy Act, 
Cal. Fin. Code §4050 et seq................................................................... 29, 34, 40 
California Unfair Competition Law,  
Cal. Bus. & Prof. Code §17200 et. seq. ..................................................... passim 
 
Rules and Regulations 
Fed. R. Civ. P. 
 
12(b)(1) ........................................................................................................ 4, 5, 6 
 
12(b)(6) .............................................................................................. 4, 23, 24, 25 
 
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Regulation E, 12 C.F.R.: 
 
§1005.3(b)(1) ..................................................................................................... 13 
 
§1005.11 .............................................................................................................. 8 
 
§1005.11(c)(1), (d)(1) ........................................................................................ 10 
 
Other Authorities 
Jay P. Kesan & Carol M. Hayes, Liability for Data Injuries,  
2019 Univ. of Ill. L. Rev. 295 (2019)................................................................ 37 
Thomas Martecchini, Note, A Day in Court for Data Breach Plaintiffs: 
Preserving Standing Based on Increased Risk of Identity Theft After 
Clapper v. Amnesty International USA,  
114 Mich. L. Rev. 1471 (2016) ......................................................................... 37 
Restatement (First) of Contracts (1932) 
 
§295 ..................................................................................................................... 7 
Restatement (Second) of Contracts (1981) 
 
§203 ................................................................................................................... 16 
 
§245 ..................................................................................................................... 7 
 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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INTRODUCTION 
 
The 25 Class Plaintiffs are among the hundreds of thousands of Californians 
who lost their jobs during the pandemic and were declared entitled to receive 
unemployment insurance (“UI”) and other public benefits from California’s 
Employment Development Department (“EDD”) through Bank of America 
(“BofA”) prepaid debit card accounts. In mid-2020, a wave of transaction fraud hit 
these accounts, often in the form of highly suspicious transactions that BofA failed 
to detect. When Plaintiffs discovered those unauthorized transactions and reported 
them, BofA was legally obligated to investigate, and to reimburse Plaintiffs unless 
the evidence showed that Plaintiffs had actually authorized the transactions. Instead 
of complying with its obligations, BofA summarily denied the claims of Plaintiffs 
and tens of thousands of class members without a good faith investigation or 
explanation, then compounded the harm by freezing their accounts, thereby denying 
them access to their EDD benefits for months on end, without notice or an 
opportunity to be heard.  
BofA responds by portraying itself as an innocent victim of “legions of 
criminals,” and by describing the devastating impact of its own admitted conduct 
on legitimate UI recipients as “regrettably unavoidable” collateral damage. Mot. at 
1-5. Not only does this self-serving narrative improperly ask this Court to decide 
disputed factual issues at the pleading stage, but it is highly misleading. This case 
is not about the widespread enrollment fraud that criminals perpetrated against 
EDD by submitting fraudulent claims for benefits. Nor is it about the accounts that 
EDD directed BofA to freeze due to suspected enrollment fraud. This case is about 
transaction fraud committed against innocent UI recipients, and BofA’s decision to 
abuse its EDD-conferred powers by denying those recipients’ claims and freezing 
their accounts, not because BofA had a reasonable and good faith basis for 
suspecting enrollment fraud, but simply because BofA sought to avoid its legal 
obligation to reimburse transaction-fraud victims. 
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Plaintiffs obtained the June 2021 preliminary injunction after establishing a 
“strong likelihood of success” on their claims that BofA violated, and continues to 
violate, the Electronic Fund Transfer Act (“EFTA”) and California’s Unfair 
Competition Law (“UCL”), and “is systematically breaching its contracts with 
cardholders” by “failing to conduct an adequate, good faith investigation when 
cardholders report unauthorized charges, and often simply freezing cardholder 
accounts based on a faulty screening process.” Master Consolidated Complaint 
(Dkt. 72) (“MCC”) Ex. A at 1.1 
The MCC builds on the complaint underlying the preliminary injunction and 
contains even more specific detail supporting Plaintiffs’ claims. For example, the 
MCC includes BofA’s admission that, in October 2020, it began summarily denying 
the unauthorized transaction claims and freezing the accounts of all EDD Debit 
Cardholders whose claim was flagged as “suspicious” by its automated initial 
screening filter (“Claim Fraud Filter”), without BofA conducting any further 
investigation or taking any steps to validate the accuracy of its “Filter,” which it 
knew had an extraordinarily high error rate. As a result, BofA deprived tens of 
thousands of legitimate UI beneficiaries of their rightful EDD benefits for 
prolonged periods of time, causing irreparable harm to them and their families. 
The MCC also contains detailed allegations about BofA’s various security 
failures and breaches that led to the widespread theft of Plaintiffs’ EDD benefits 
and account information, including BofA’s issuance of debit cards (“EDD Debit 
Cards”) that did not use the industry-standard, information-encrypting EMV chip 
technology that BofA has used in all its consumer credit and debit cards since 2014 
 
1 The MCC includes the allegations of 25 Class Plaintiffs (¶¶114-285) and 
241 separately represented Individual Plaintiffs (¶¶286-526), most of whom also 
experienced unauthorized transactions that BofA failed to investigate and remedy 
as EFTA requires. See infra at 5-10. Some Individual Plaintiffs also brought 
separate claims that were not included in the MCC, such as the identity theft and 
conversion claims by the three Individual Plaintiffs in Alvarez, Rojas, and Verdun, 
which are stayed by order of this Court. Dkt. 48 at 2. 
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and which BofA acknowledges “has been around for over 20 years and is the credit 
and debit card security standard in many countries around the world.” ¶68.2 The 
MCC also alleges that BofA negligently subcontracted much of its customer service 
to call center company TTEC, which hired hundreds if not thousands of customer 
service representatives (“CSRs”) without any background checks, gave those 
unvetted CSRs open access to Plaintiffs’ financial and other personal information 
(“PI”), failed to secure Plaintiffs’ PI from unnecessary or unauthorized access and 
disclosure, and failed to train or supervise CSRs on proper data security practices, 
leading to a series of internal data breaches. ¶¶55, 595-96. 
BofA is not the victim here. The heartbreaking testimony of financial 
hardship, frustration, and fear presented in the preliminary injunction proceedings 
that preceded this motion and are pleaded in the MCC make that clear. The massive 
theft of UI funds from class members whom EDD properly found eligible for UI 
benefits resulted from BofA’s deliberate decision to cut as many corners as it could 
get away with in distributing EDD benefits. When the foreseeable consequences of 
its cost-cutting practices were realized—i.e., when its customer service phone lines 
began to be overwhelmed with thousands of EDD Debit Cardholders complaining 
that their accounts had been breached and their critically needed UI funds stolen—
BofA cold-heartedly ignored their pleas and further deprived them of the funds they 
needed to survive. The preliminary injunction in this case was a stop-gap measure 
that enabled tens of thousands of class members to recover millions of dollars of 
wrongfully withheld funds. The MCC appropriately seeks to hold BofA liable for 
its unlawful practices, which caused enormous hardship to class members. 
Plaintiffs’ allegations are more than sufficient at this pleading stage. BofA’s 
failure to secure EDD Debit Cardholders’ PI, which foreseeably caused the theft of 
their EDD benefits, was negligent, violated the California Consumer Privacy Act 
(“CCPA”) and California Customer Records Act (“CCRA”), and breached BofA’s 
 
2 “¶_” refers to paragraphs in the MCC, unless otherwise indicated. 
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contractual obligations to secure Plaintiff cardholders’ funds and PI. BofA’s 
summary denial of Plaintiffs’ unauthorized transaction claims without the legally 
required good faith investigation or written explanation violated their rights under 
EFTA and their account agreement with BofA (“Cardholder Agreement”), as well 
as their third-party rights under BofA’s contract with EDD (“EDD-BofA 
Contract”). BofA’s freezing of Plaintiff cardholders’ accounts without a reasonable 
basis and without providing timely notice and an opportunity to contest the freeze 
violated those cardholders’ contractual and due process rights. BofA’s customer 
service, characterized by hours-long wait times, frequent dropped calls, and no 
meaningful assistance, violated BofA’s contractual and tort obligations to Plaintiffs. 
All of BofA’s challenged conduct also violated the UCL. Finally, BofA’s decision 
to reimburse some Plaintiffs in response to this litigation does not address numerous 
concrete harms caused by BofA’s EFTA and contractual violations, nor does it moot 
any underlying legal claims or fully satisfy BofA’s liability for actual damages, 
EFTA statutory and treble damages, or other requested relief. 
LEGAL STANDARDS 
BofA moves to dismiss under Rules 12(b)(1) and 12(b)(6) but fails to meet 
its burden under either Rule. The applicable standards are well settled. Under Rule 
12(b)(6), plaintiffs need only present “a short and plain statement of the claim 
showing that the pleader is entitled to relief, in order to give the defendant fair notice 
of what the claim is and the grounds upon which it rests.” Grandesign Advertising 
Firm, Inc. v. Talon US (Grandesign) LLC, 2021 WL 780477, at *1 (S.D. Cal. Mar. 
1, 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court 
must accept the allegations in the complaint as true, construing them in the light 
most favorable to plaintiffs and drawing all reasonable inferences in plaintiffs’ 
favor. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).  
Under Rule 12(b)(1), the Court may consider evidence presented by a 
defendant that moves to dismiss based on mootness or lack of Article III standing, 
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but it should not resolve disputed factual issues where “jurisdiction is dependent on 
the resolution of factual issues going to the merits.” Roberts v. Corrothers, 812 F.2d 
1173, 1177 (9th Cir. 1987) (cleaned up). Class claims may be adjudicated if any 
Class Plaintiff has standing, Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 
(9th Cir. 2007) (en banc), and they all do here. See infra at 10-13, 36-38. 
ARGUMENT 
I. 
Plaintiffs State Claims Under EFTA/Regulation E (Count 1) 
The MCC alleges in detail how BofA has circumvented its EFTA obligations 
and systematically violated Plaintiffs’ EFTA rights. See generally ¶¶3-4, 80, 285, 
536.3 In the Yick case, No. 21-cv-00376 (N.D. Cal.), the court entered a preliminary 
injunction against BofA after concluding that Plaintiffs established a “strong 
likelihood of success on their claims that [BofA] has violated, and continues to 
violate, the Electronic Fund Transfers Act by failing to conduct an adequate, good 
faith investigation when cardholders report unauthorized charges.” MCC Ex. A at 
1 (citing 15 U.S.C. §1693f). Plaintiffs’ EFTA claims now rest on even more detailed 
factual allegations, including those revealed during the preliminary injunction 
proceedings. Yet BofA seeks dismissal of these claims, arguing that Plaintiffs do 
not adequately allege that they provided BofA notice of their unauthorized 
 
3 Specific violations include (1) making it unreasonably difficult to report and 
obtain customer service for fraud claims, ¶536(a) (e.g., ¶¶87-88, 90, 96-104, 117-
26, 133, 141, 145-50, 179-84, 198, 209-13, 221-23, 251); (2) not providing 
provisional credit, ¶536(b)-(c) (e.g., ¶¶89-91, 202, 275); (3) denying fraud claims 
without conducting good faith investigations, ¶536(a), (c)-(g) (e.g., ¶¶9-33, 89-91, 
188, 240, 249, 252, 256, 259, 277); (4) freezing Plaintiffs’ Accounts indefinitely 
when they submit fraud claims, ¶536(a), (j) (e.g., ¶¶93-96, 100, 138-39, 149, 196-
97, 226-27); (5) withholding EFTA-mandated information, such as a written 
explanation of why it denied individual claims, ¶536(h) (e.g., ¶¶89-90, 140, 158, 
166, 218, 240, 283-84); (6) rescinding prior “permanent” credits, ¶536(k) (e.g., ¶¶92, 
207-08, 232, 240, 263-64, 269-71); and (7) issuing permanent credit long after the 
EFTA deadline to do so had expired, ¶536(e), (i) (e.g., ¶¶135, 143, 151, 159, 168-
69, 176, 191, 236). 
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transaction claims, and they do not specify precisely how BofA failed to conduct 
good faith investigations into their claims. Mot. at 17-20. BofA further moves to 
dismiss under Rule 12(b)(1), contending its recent reimbursements mooted certain 
claims. Id. at 9. These arguments are meritless. 
A. Plaintiffs Provided Sufficient Notice under EFTA. 
BofA’s only challenge to the Class Plaintiffs’ EFTA notice allegations is that 
they do not allege they informed BofA of the specific “reasons for their belief” that 
“an error exists” on their account. Mot. at 8, 17-18, App’x Column 3. But all 25 
Class Plaintiffs detail why they believed the disputed transactions were 
unauthorized, and alleged that they promptly reported those transactions to BofA. 
See, e.g., ¶129 (Rivera discovered $800 ATM withdrawal made an hour from her 
home and “immediately … submit[ted] a claim disputing the transaction”).4 These 
allegations show, and at minimum give rise to a plausible inference, that Plaintiffs 
conveyed their stated reasons for claiming fraud, see Grandesign, 2021 WL 
780477, at *1, and are far more detailed than the bare-bones allegations held 
insufficient in BofA’s cited cases. Compare Shapiro v. Am.’s Credit Union, 2013 
WL 5373269, at *2 (W.D. Wash. Sept. 25, 2013) (pro se plaintiff failed to identify 
dates or amounts of disputed transactions at summary judgment), and Ghalchi v. 
U.S. Bank, N.A., 2015 WL 12655402, at *8 (C.D. Cal. Jan. 8, 2015) (plaintiffs 
vaguely pled they “notified” bank of unspecified disputed transactions), with, e.g., 
¶180 (Willrich and BofA CSR “spent approximately one hour going through every 
charge during a three-month period to ensure all fraudulent activity was accounted 
for”); ¶188 (McClure “presented evidence … regarding the unauthorized 
transactions, which the Bank representative acknowledged was indicative of 
fraud”); ¶192 (Wilson told BofA CSR he had not used his card in location where 
disputed transactions occurred).  
 
4 See also ¶¶129, 137-38, 144-45, 152-55, 160-63, 172-73, 195, 198, 200-05, 
207, 216-17, 225-26, 230-31, 238-39, 250, 254, 258-59, 261, 268-69, 274-75, 280.  
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The plausibility of Plaintiffs’ showing is reinforced by their allegations that 
BofA acted on Plaintiffs’ reports by opening unauthorized transaction claims—and, 
eventually, by crediting many of their accounts for the amounts in dispute (albeit 
only after Plaintiffs filed this action),5 further demonstrating that BofA found 
Plaintiffs’ notices sufficient to trigger its own error resolution procedures. In some 
instances, BofA’s claims representatives affirmatively acknowledged receipt of the 
claims, provided claim numbers, and/or assured Plaintiffs that their claims would 
be investigated.6 In others, BofA issued the Plaintiff “permanent” credit (before 
reversing that credit months later).7 Plaintiffs further allege that BofA sent them 
boilerplate denial letters that identify their claims by claim number and transaction 
amount, and deny their claims without saying anything about the Plaintiff having 
failed to provide sufficient information or notice.8 These facts are or should be 
confirmed by BofA’s own records. ¶535; see Grandesign, 2021 WL 780477, at *1 
(allegations sufficient if they “‘raise a reasonable expectation that discovery will 
reveal evidence’ supporting that inference”) (quoting Twombly, 550 U.S. at 556).9 
 
5 See, e.g., ¶¶135, 143, 151, 159, 168, 176, 191, 194, 199, 215, 224, 228, 253, 
267, 273. BofA cannot escape liability to the Plaintiffs who, despite diligent efforts, 
were unable to get through to BofA due to hours-long wait times and other barriers 
BofA imposed that made it exceedingly difficult to report and submit claims. Supra 
note 3, item 1; see Jacobs v. Tenneco W., Inc., 186 Cal.App.3d 1413, 1418 (1986) 
(“A party who prevents fulfillment of a condition of his own obligation … cannot 
rely on such condition to defeat his liability.”) (citation omitted); accord 
Restatement (First) of Contracts §295 (1932) (“If a promisor prevents or hinders 
the occurrence of a condition … the condition is excused.”); Restatement (Second) 
of Contracts §245 (1981) (similar). 
6 See, e.g., ¶¶129-30, 145, 148, 248, 281. 
7 See, e.g., ¶¶207-08, 231-32, 239-40, 246-47, 263-64, 269, 271. 
8 See, e.g., ¶¶130, 140, 156, 164, 181, 188, 218, 248, 271, 276, 283. 
9 This is equally true for the 241 Individual Plaintiffs, most of whom also alleged 
reporting unauthorized transactions. See, e.g., ¶382 (Individual Plaintiff “reported 
the fraud to Bank of America via phone” day after receiving text alert concerning 
fraudulent $65 transaction); ¶¶286, 288-301, 303-24, 326-86, 388-93, 395-98, 400-
06, 408-66, 468-69, 471, 475-82, 484, 486-87, 489-516, 518-25. 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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Alone and in combination, these allegations adequately plead that BofA had 
sufficient notice of Plaintiffs’ unauthorized transaction claims to trigger its error 
resolution obligations under EFTA, 15 U.S.C. §1693f, and Regulation E, 12 C.F.R. 
§1005.11. 
 
B. Plaintiffs Adequately Allege that BofA Denied Claims Without 
Having Conducted a Reasonable, Good Faith Investigation. 
Plaintiffs’ allegations are also more than sufficient to plead that BofA failed 
to conduct the legally required “good faith investigation[s]” of their unauthorized 
transaction claims and wrongfully denied their claims without a “reasonable basis,” 
in violation of EFTA and Regulation E. 15 U.S.C. §1693f(e). Far from being 
“conclusory” (Mot. at 20), Plaintiffs’ allegations are detailed, specific, and based in 
part on BofA’s own submissions in opposition to Plaintiffs’ preliminary injunction 
motion in Yick.  
As shown above (at 6-8), Plaintiffs allege in detail why their unauthorized 
transaction claims were valid, and why BofA should have reached that same 
conclusion (had it conducted the legally required investigations). Instead of 
conducting the required investigations, BofA often summarily denied Plaintiffs’ 
claims within just one or two days and sent them substantively identical form denial 
letters with no real explanation of the results or findings of any investigation.10 The 
timing and boilerplate nature of these denial letters strongly support the inference 
that BofA did not actually investigate those claims—an inference supported by 
allegations that confirm BofA’s failure to investigate. See, e.g., ¶256 (after claim 
was denied, Auburn called New York Walgreens where fraudulent charges had 
occurred and spoke with manager who informed her that store had video of 
transactions, but “neither [BofA] nor anyone else had contacted the store to ask 
about or investigate the transactions”). Moreover, BofA’s subsequent decisions to 
“reconsider” and pay Plaintiffs’ claims (after the statutory deadline and after 
 
10 See, e.g., ¶¶89, 130, 140, 156, 164, 181, 188, 218. 
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Plaintiffs filed suit)11 further supports the inference that BofA’s initial claim denials 
were not based on reasonable or good faith investigations. 
Plaintiffs further allege that BofA’s own declarations, filed in opposition to 
Plaintiffs’ preliminary injunction motion, confirm that instead of conducting the 
required individualized investigations into disputed transactions, BofA wrongfully 
maintained (from at least October 2020 until the injunction issued in June 2021) a 
“policy and practice of (a) subjecting every EDD Debit Cardholder who submitted 
a claim of unauthorized transaction to an initial ‘Claim Fraud Filter,’ [and] 
(b) automatically and without investigation denying the fraud claim of any EDD 
Debit Cardholder flagged by the Claim Fraud Filter.” ¶108 (emphasis added). 
Plaintiffs allege that BofA adopted these policies and practices “to circumvent its 
obligations under EFTA and Regulation E,” which require it to issue provisional 
and permanent credit within specified time periods. ¶¶91, 536(a)-(c).12 Even if 
EFTA does not prohibit the use of “automated” measures as an investigatory tool 
(Mot. at 19), BofA’s exclusive reliance on the results of an automated filter—which 
BofA concedes is only “a screening step to first determine whether a Claim itself is 
likely fraudulent” (Mot. at 11) (emphasis added)—to conclusively determine claims 
without any additional investigation was not reasonable or in good faith. BofA’s 
reliance on that filter was particularly unreasonable given Plaintiffs’ allegation that 
the filter “has an extremely high false positive rate, and erroneously flagged tens of 
thousands of [legitimate] claimants as criminals using stolen identities,” and BofA 
knew this. ¶108. BofA’s exclusive reliance on its automated filter was also 
particularly unreasonable given the ease with which BofA could have validated the 
 
11 See, e.g., ¶¶135, 143, 151, 159, 168, 176, 191, 194, 199, 214-15, 224, 228, 
253, 267, 273. 
12 BofA also had a “policy and practice of … automatically and without 
investigation freezing or blocking the Account of any … Cardholder flagged by the 
Claim Fraud Filter,” which was a further unlawful effort to circumvent EFTA and 
gives rise to treble damages. ¶¶108, 536(j); see 15 U.S.C. §1693f(e). 
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filter’s results—such as providing flagged cardholders the opportunity to 
authenticate their identity by answering security questions over the phone or by 
presenting a photo ID at a Bank branch, as BofA must now provide under the 
preliminary injunction order. MCC Ex. B, para. 4(b). 
Finally, allegations that BofA denied Plaintiffs’ unauthorized transaction 
claims “without providing a report of the results of [BofA]’s investigation of the 
claim that includes a written explanation of [BofA]’s findings” (¶536(h)) state an 
additional, independent claim for violation of EFTA. See 15 U.S.C. §1693f(a), (d) 
(requiring BofA to provide “the results of [its] investigation” and written 
“explanation of its findings”); 12 C.F.R. §1005.11(c)(1), (d)(1) (similar); Gale v. 
Hyde Park Bank, 384 F.3d 451, 453 (7th Cir. 2004) (plaintiff stated EFTA claim by 
alleging bank “rejected his claim without much explanation,” thus providing “a 
‘determination’ but not ‘the results of such investigation’”). BofA entirely ignores 
this additional theory of statutory liability, providing yet another reason its motion 
should be denied. 
 
C. BofA’s Systemic EFTA and Contract Violations Caused Concrete 
Injuries That Were Not Redressed by Reimbursement. 
BofA argues that it mooted many Plaintiffs’ EFTA and contract claims by 
“reconsidering” its prior denials and crediting their accounts. Mot. at 2, 9, 18. But 
even if BofA were to belatedly reimburse every Class Plaintiff with interest and 
tender all relief requested, including statutory and treble damages (see ¶¶545, 610, 
pp. 275-76), that still would not moot Plaintiffs’ class claims. See Bates, 511 F.3d 
at 985 (only one class plaintiff need have standing).13 Under the “pick off” doctrine, 
 
13 To be clear, Plaintiffs allege BofA acted unreasonably and in bad faith and 
knowingly and willfully violated their EFTA and contract rights, giving rise to treble 
damages. ¶¶537-38; see 15 U.S.C. §1693f(e)(1)-(2) (providing for treble damages 
if bank (1) did not provisionally recredit a consumer’s account within 10 business 
days and either “(A) did not make a good faith investigation of the alleged error, or 
(B) did not have a reasonable basis for believing that the consumer’s account was 
 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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class claims cannot be mooted by “picking off” plaintiffs before they have had “a 
reasonable opportunity to file a motion seeking class certification.” Chen v. Allstate 
Ins. Co., 819 F.3d 1136, 1148 (9th Cir. 2016); accord Buckeye Tree Lodge & 
Sequoia Vill. Inn, LLC v. Expedia, Inc., 2019 WL 1170489, at *1-2 (N.D. Cal. Mar. 
13, 2019). The doctrine applies with particular force here, since at least seven Class 
Plaintiffs were reimbursed only after they successfully moved for provisional class 
certification in Yick on April 1, 2021. ¶¶135, 143, 151, 176, 194, 199, 224; MCC 
Ex. A at 1-2 (provisional certification). 
In any event, five Class Plaintiffs still have not been reimbursed for 
unauthorized transactions on their accounts. See ¶¶126, 202, 260, 278, 284; accord 
Mot. App’x Column 4. BofA’s reimbursements of the other 20 Class Plaintiffs were 
all untimely (i.e., after expiration of the 45-day deadline under EFTA and the 
Cardholder Agreement), yet BofA has not paid them treble or other statutory 
damages (see 15 U.S.C. §§1693f(e), 1693m(a)(2)), nor has BofA compensated them 
for all actual damages caused by the unlawful delay (see id. §1693m(a)(1)). Supra 
note 3, item 7; ¶¶545(a), 609-10, pp. 275-76 (seeking actual damages with 
interest).14 These are all concrete, compensable monetary harms that establish 
Article III standing. See Van v. LLR, Inc., 962 F.3d 1160, 1162, 1164 (9th Cir. 2020) 
(“the inability to have and use money to which a party is entitled is a concrete 
injury,” and thus plaintiff had standing to seek $3.76 for loss of use of funds after 
receiving mid-lawsuit refund without interest); Dieffenbach v. Barnes & Noble, 
 
not in error”; or (2) “knowingly and willfully concluded that the consumer’s 
account was not in error when such conclusion could not reasonably have been 
drawn from the evidence available to the financial institution at the time of its 
investigation”). 
14 Of the 20 “reimbursed” Class Plaintiffs, 16 were untimely reimbursed only after 
filing suit. See ¶¶135, 143, 151, 159, 168, 175, 191, 194, 199, 224, 228, 253, 267, 
273; Mot., Daniels Decl. (Dkt. 84-8) ¶¶3c, 3d (Yuan and Zoelle reimbursed after 
MCC filed). Two others were untimely reimbursed only after threatening suit (¶215) 
or after a news reporter contacted BofA to ask why it had denied her claims (¶257). 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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Inc., 887 F.3d 826, 828 (7th Cir. 2018) (plaintiffs had standing “because 
unauthorized withdrawals from their accounts cause a loss (the time value of 
money) even when banks later restore the principal”). As this Court has held, “loss 
of interest and/or loss of beneficial use” of unauthorized transaction funds is 
recoverable under EFTA and not mooted by reimbursement without interest. Park 
v. Webloyalty.com, Inc., 2019 WL 1227062, at *3 (S.D. Cal. Mar. 15, 2019).15  
BofA’s practices also caused numerous concrete intangible harms. For 
example, Plaintiffs were denied access to statutorily mandated information, making 
it difficult or impossible for them to challenge BofA’s denials of their claims. Supra 
note 3, item 5; see Magadia v. Wal-Mart Assocs., Inc., 999 F.3d 668, 679-80 (9th 
Cir. 2021) (failure to provide statutorily mandated itemized wage statements caused 
concrete injury); Robertson v. Allied Sols., LLC, 902 F.3d 690, 697 (7th Cir. 2018). 
Plaintiffs also had to spend many hours or days on hold waiting to speak with CSRs 
to seek, among other things, “reconsideration” of unlawfully denied claims. Supra 
note 3, items 1, 3, 6; see Dieffenbach, 887 F.3d at 828 (loss of “time needed to set 
things straight” was concrete injury); Sisley v. Spring Commc’ns Co., 284 F.App’x 
463, 466 (9th Cir. 2008) (similar).16  
None of the above injuries were remedied by BofA’s lawsuit-induced change 
of heart to “reconsider” its prior unlawful denials and finally to pay Plaintiffs’ 
unauthorized transaction claims without interest. Thus, Plaintiffs’ claims are not 
moot. See Chen, 819 F.3d at 1138, 1148 (claim is not moot until plaintiff has been 
 
15 These same authorities support standing for similar harms, such as those 
arising from unlawful denials of provisional credits and from unreasonable account 
freezes and blocks. See supra note 3, items 2, 4. They also support Plaintiffs’ 
standing to bring their contract claims. See Castanares v. Deutsche Lufthansa AG, 
2021 WL 811455, at *2-4 (C.D. Cal. Jan. 26, 2021) (applying Van to contract claim). 
16 See also Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 241 (4th 
Cir. 2019) (violation of plaintiff’s EFTA right to enter contract “without being 
required to agree to preauthorized [electronic fund transfer]” was “substantive 
violation” causing concrete injury). 
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afforded “all relief requested in the complaint”) (citation omitted); T.K. v. Adobe 
Sys. Inc., 2018 WL 1812200, at *10-12 (N.D. Cal. Apr. 17, 2018) (collecting cases).  
D. All Plaintiffs Reported “Errors” Within the Scope of EFTA. 
BofA contends some Individual Plaintiffs17 have not stated an EFTA claim 
because they “failed to plead that they reported any unauthorized transaction or 
other transaction error.” Mot. at 17, App’x Columns 1-2; see Mot. at 8. But EFTA 
defines “errors” broadly to include not just “unauthorized transactions,” but also 
other events such as “a consumer’s request for additional information or 
clarification concerning an electronic fund transfer or any documentation” required 
by EFTA. 15 U.S.C. §1693f(f)(6). The term “electronic fund transfer” means “any 
transfer of funds … initiated through an electronic terminal … or computer … so 
as to order, instruct, or authorize a financial institution to debit or credit an account.” 
Id. §1693a(7); 12 C.F.R. §1005.3(b)(1) (similar). Under the statute, then, whose 
language BofA entirely ignores, an EFTA “error” includes any Plaintiff’s “request 
for additional information or clarification” from BofA about a periodic EDD 
benefits payment (which EDD, as a matter of routine practice, electronically 
transfers to BofA with instructions to BofA to credit the payment to the Plaintiff’s 
account) that was not deposited to the Plaintiff’s account, or that the Plaintiff was 
otherwise unable to access, because BofA had frozen or blocked their account. Each 
Class and Individual Plaintiff alleged that they gave BofA notice of an “error” as 
defined by the statute.18 
Because all Plaintiffs plead facts alleging that they timely reported to BofA 
an unauthorized transaction or other account “error” with enough specificity to 
satisfy EFTA’s notice requirements, especially when construed in the light most 
 
17 BofA does not make this argument as to any Class Plaintiffs. 
18 Individual Plaintiffs further contend that they each notified BofA and 
requested “additional information or clarification” about issues related to their 
accounts, and that these requests for additional information and clarification 
constitute reporting an “error” under 15 U.S.C. §1693f(f)(6).  
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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favorable to Plaintiffs, the Court should reject BofA’s arguments to the contrary. 
See Twombly, 550 U.S. at 555 (plaintiffs need only give “fair notice of what the 
claim is and the grounds upon which it rests”). Nonetheless, if any particular 
Plaintiff’s allegations are found insufficient, the Court should grant leave to amend.  
II. 
Plaintiffs State Breach of Contract Claims (Counts 7, 8, 9) 
The preliminary injunction order in Yick also held that Plaintiffs had a “strong 
likelihood of success on their claims that [BofA] is systematically breaching its 
contracts with cardholders ….” MCC Ex. A at 1. Despite the even more detailed 
allegations of breach in the MCC, BofA contends that the contract claims should be 
dismissed as insufficiently pled. That argument fails as well. 
A. Plaintiffs State a Claim for Breach of the Cardholder Agreement. 
For the same reasons Plaintiffs have standing and adequately stated claims 
under EFTA, they also have standing and stated valid claims for breach of Section 
11 of the Cardholder Agreement,19 which expressly incorporates all their rights 
under EFTA and Regulation E. See ¶605; Cardholder Agreement §9 (incorporating 
“any consumer rights you may have under Regulation E, as described in Sections 
10 and 11,” with respect to unauthorized transactions); id. §11 (explaining error 
resolution process and timelines under EFTA and Regulation E).20  
 
19 Citations to the “Cardholder Agreement” refer to Exhibit A to the 
accompanying Declaration of Brian Danitz (downloaded from BofA’s EDD Debit 
Card website), and Exhibit 1 to BofA’s Declaration of Robert Chestnut (Dkt. 84-5). 
The two versions are substantively the same, including the same effective date, 
except for the governing law provision. Compare Danitz Decl., Ex. A, §18 
(California law), with Chestnut Decl., Ex. 1, §18 (North Carolina law). See also 
Pls.’ Opp’n to Def.’s RJN at 2; Pls.’ RJN at 1. 
20 BofA contends that any Plaintiff whose unauthorized transaction claims were 
untimely reimbursed cannot recover contract damages for that delay, arguing that 
the Cardholder Agreement limits BofA’s contractual liability to the “face amount 
of any unauthorized card transaction” and exempts it from “claims of special, 
indirect or consequential damages.” Mot. at 9 (quoting Cardholder Agreement §9). 
Not so. That quoted language appears in Section 9, which describes “Bank of 
 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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Plaintiffs also state a claim for breach of BofA’s “Zero Liability” guarantee 
under Section 9 of the Cardholder Agreement, which goes beyond EFTA and 
Regulation E by providing cardholders additional protections for unauthorized 
transactions. See ¶605; Cardholder Agreement §9 (“Under the Bank of America 
‘zero liability’ policy, you may incur no liability for unauthorized use of your Card 
up to the amount of the unauthorized transaction, provided you notify us within a 
reasonable time ….”). Section 9 defines “reasonable time” as “not [] less than the 
time frames specified under the [EFTA] or Regulation E.” Id. BofA acknowledges 
that not all Plaintiffs have been reimbursed for disputed transactions (Mot. at 9), 
which precludes dismissal of Plaintiffs’ class-wide claims on standing and 
mootness grounds. See B.K. ex. rel. Tinsley v. Snyder, 922 F.3d 957, 966-67 (9th 
Cir. 2019). Plaintiffs’ claim for breach of Section 9 thus remains a live controversy. 
Plaintiffs also adequately plead three separate claims for breach of Section 2 
of the Cardholder Agreement, which narrowly limits the circumstances under which 
BofA may freeze or block accounts and which guarantees that funds will be made 
available to cardholders in accordance with EDD’s instructions. See ¶¶606, 608; 
Cardholder Agreement §2 (allowing BofA to freeze accounts only “pending an 
investigation” of suspected “irregular, unauthorized or unlawful activities”).  
First, Plaintiffs allege that BofA had a policy and practice of responding to 
cardholders who reported unauthorized transactions “by automatically and 
indefinitely freezing or blocking their Accounts” (¶93), including based solely on 
the results of an unreliable Claim Fraud Filter with an “extremely high false positive 
rate” that “erroneously flagged tens of thousands of [legitimate] claimants” (¶108). 
These allegations are more than sufficient to state a claim that BofA violated 
 
America’s ‘Zero Liability’ Policy for Unauthorized Transactions,” and limits 
BofA’s liability only “under this policy”—that is, only under the Zero Liability 
Policy. See Cardholder Agreement §9. Accordingly, nothing precludes Plaintiffs 
who received untimely reimbursements from recovering contract damages for that 
delay in breach of their rights under Section 11 of the Cardholder Agreement. 
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Section 2 by initiating freezes and blocks “without a reasonable basis for suspecting 
irregular, unauthorized, or unlawful activities in the Account.” ¶608(e).21 
Second, Plaintiffs allege that BofA had a policy and practice of maintaining 
freezes and blocks on accounts “beyond the length of time necessary for a 
reasonable investigation” (¶608(e))—especially because it routinely maintained 
freezes and blocks for “months on end” without any post-freeze investigation, and 
continued to maintain them even after cardholders “obtain[ed] confirmation from 
EDD that they either [did] not need to re-verify or [had] successfully re-verified 
their benefits eligibility” (¶¶94-96, 108). Clearly, BofA’s freezes were not limited 
to the time necessary to conduct an “investigation,” as required by Section 2. 
Finally, BofA largely ignores (see Mot. at 13-14) allegations that its “practice 
of freezing or blocking Accounts cuts off the affected EDD Debit Cardholders’ 
access to any continuing benefits … to which EDD has determined the Cardholder 
is entitled.” ¶93; see also ¶53. These allegations plainly state a claim that BofA 
further violated Section 2 by failing to make “[f]unds … available for your use on 
the day we have been instructed by the EDD to fund your Account.” ¶606 (quoting 
Cardholder Agreement §2). 
B. Plaintiffs State a Claim for Breach of Implied Contract. 
Plaintiffs also state a claim for BofA’s breach of its implied contractual 
duties, including its duty to “take reasonable steps to ensure that [Plaintiffs’] 
Accounts were secure against unauthorized transactions and that any claims 
 
21 While Section 2 does not expressly state that BofA must have a reasonable, 
good faith basis for “suspecting irregular, unauthorized, or unlawful activities” 
before it freezes an account, that obligation is an implied term of the contract. See 
Cal. Civ. Code §1643 (“A contract must receive such an interpretation as will make 
it … reasonable … if it can be done without violating the intention of the parties.”); 
Restatement (Second) of Contracts §203, cmt. c (1981) (“In the absence of contrary 
indication, it is assumed that each term of an agreement has a reasonable rather than 
an unreasonable meaning ….”). At the very least, good faith implementation is 
required by the covenant of good faith and fair dealing. See infra at 18-20. 
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regarding unauthorized transactions were adequately investigated and resolved.” 
¶612. “It is well established that a bank has ‘a duty to act with reasonable care in its 
transactions with its depositors ….’” Chazen v. Centennial Bank, 61 Cal.App.4th 
532, 543 (1998) (quoting Bullis v. Sec. Pac. Nat’l Bank, 21 Cal.3d 801, 808 (1978)). 
“The duty is an implied term in the contract between the bank and its depositor.” 
Id. (citing Barclay Kitchen, Inc. v. Cal. Bank, 208 Cal.App.2d 347, 353 (1962)). 
Because this duty is implied in every contract between banks and depositors, there 
is no merit to BofA’s insistence that it never “assent[ed]” to it. Mot. at 17.  
Moreover, this implied contractual obligation applies to (and supplements) 
each of BofA’s express contractual obligations. See Webster v. HSBC Bank USA 
Nat’l Ass’n, 2012 WL 13012700, at *3 (C.D. Cal. Mar. 5, 2012) (quoting Das v. 
Bank of Am., N.A., 186 Cal.App.4th 727, 741 (2010)). That implied obligation has 
specifically been held to require banks to make reasonable efforts to protect 
depositors when, as here, “[an] individual notifies a bank of potential fraud 
occurring with respect to bank accounts.” Hawkins v. Bank of Am., N.A., 2018 WL 
1316160, at *3 (S.D. Cal. Mar. 14, 2018) (citing Das, 186 Cal.App.4th at 741-42).22  
BofA violated this implied contractual duty to take reasonable care, including 
by failing to provide reasonably secure benefits cards and accounts; failing to hire, 
train, and manage a customer service operation sufficient to provide reasonable and 
timely responses to the foreseeable surge in claims during the pandemic; and failing 
 
22 Because the implied duty to take care in the performance of express 
contractual obligations is distinct from the express obligations themselves, BofA’s 
reliance on cases where implied contract allegations merely duplicated breach of 
express contract allegations is misplaced. Mot. at 16 (citing Berkla v. Corel Corp., 
302 F.3d 909, 918 (9th Cir. 2002), and APAC-Carolina, Inc. v. Greensboro-High 
Point Airport Auth., 110 N.C. App. 664, 675 (1983)). In any event, any alleged 
overlap of implied and express contract claims is not a basis to dismiss alternative 
theories at the pleading stage. See Cal. Spine & Neurosurgery Inst. v. United 
Healthcare Ins. Co., 2019 WL 4450842, at *5 (N.D. Cal. Sept. 17, 2019). 
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to timely and adequately investigate fraud claims and provide provisional credits 
when required to do so. See id.; ¶¶55-56, 59-69, 80-105, 614-17. 
 
C. Plaintiffs State a Claim for Breach of the Implied Covenant of 
Good Faith and Fair Dealing. 
“Every contract imposes upon each party a duty of good faith and fair dealing 
in its performance.” Carma Developers (Cal.) Inc., v. Marathon Dev. Cal., Inc., 2 
Cal.4th 342, 371 (1992) (citation omitted). This “implied covenant … prevent[s] a 
contracting party from engaging in conduct that—though not technically violating 
the express covenants—nonetheless ‘frustrates the other party’s rights to the 
benefits of the contract.’” Webster, 2021 WL 13012700, at *3 (citation omitted). 
“‘The covenant of good faith finds particular application in situations where one 
party is invested with a discretionary power affecting the rights of another,’” and 
requires that “[t]he party with discretionary power [] exercise such power in good 
faith and through ‘objectively reasonable conduct.’” 3500 Sepulveda, LLC v. 
Macy’s W. Stores, Inc., 980 F.3d 1317, 1324 (9th Cir. 2020) (citations omitted). 
BofA breached this covenant. ¶¶619-24. By issuing Plaintiffs cards with 
inadequate security protection that subjected Plaintiffs to widespread theft of their 
EDD benefits, by unreasonably denying Plaintiffs’ unauthorized transaction claims 
and freezing their accounts, and by denying Plaintiffs reasonably adequate customer 
service to assist them in reporting and remedying unauthorized transactions and 
frozen and blocked accounts, BofA “frustrate[d] [Plaintiffs’] rights to the benefits 
of” the Cardholder Agreement and Plaintiffs’ third-party beneficiary rights under 
the EDD-BofA Contract. Further, whatever discretion the Cardholder Agreement 
may purport to confer about what constitutes an “investigation” and when BofA 
“may ‘freeze’” accounts, the implied covenant precludes BofA from exploiting that 
discretion through “unreasonable conduct” that denies Plaintiffs the benefit of their 
bargain, contrary to their “legitimate expectations.” Carma Developers, 2 Cal.4th 
at 373. Allowing BofA to exploit such discretion by arbitrarily denying claims and 
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freezing accounts without good cause and without a reasonable and good faith 
investigation would “virtually eliminate[] the good faith and fair dealing 
requirement.” Badie v. Bank of Am., 67 Cal.App.4th 779, 795-97 (1998), rev. denied 
(banks must exercise discretion reasonably and consistent with parties’ 
expectations).  
Because BofA’s obligation to exercise its discretion in good faith is 
consistent with its express obligations under the Cardholder Agreement, its reliance 
on cases where the plaintiff sought to contradict the express terms of the 
agreement,23 or where the implied covenant allegations merely duplicated express 
terms,24 misses the point. BofA’s contention that Plaintiffs’ claims are “too vaguely 
alleged” because they include claims that BofA did not act “reasonably” (Mot. at 
16) ignores the complaint’s detailed allegations (see ¶¶619-24) and the reality that 
“reasonableness” standards apply throughout the law. Badie, 67 Cal.App.4th at 796 
(“essence of the good fair covenant is objectively reasonable conduct”); Peak-Las 
Positas Partners v. Bollag, 172 Cal.App.4th 101, 106 (2009) (“Good faith and 
 
23 See Mot. at 14-15 (citing Dos Beaches, LLC v. Mail Boxes Etc., Inc., 2012 
WL 506072, at *15 (S.D. Cal. Feb. 15, 2012) (covenant cannot prohibit something 
“contract expressly permits,” but “[j]ust because the contract does not expressly 
prohibit a certain course of conduct does not mean the covenant of good faith and 
fair dealing allows it”) (emphasis added); Gilmore v. Garner, 157 N.C. App. 664, 
667 (2003) (implied terms cannot be “inconsistent” with express terms); N.C. Mail 
Haulers & Postal Labor Local 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 new obligations,” without disputing implied covenant applies 
to exercise of conferred discretion); McKnight v. Torres, 563 F.3d 890, 893 (9th 
Cir. 2009) (implied covenant does not “alter” or “add” duties but does operate “to 
prevent a party from taking action that ‘will injure the right of the other to receive 
the benefits of the agreement’”) (citations omitted)). 
24 See Mot. at 15-16 (citing Rezapour v. Earthlog Equity Grp., 2013 WL 
3326026, at *4 (W.D.N.C. July 1, 2013) (dismissing “freestanding” implied 
covenant claim and permitting “theories of breach of good faith” in support of 
breach of contract claim); Diehl v. Starbucks Corp., 2013 WL 12108658, at *6 (S.D. 
Cal. Oct. 16, 2013) (plaintiffs failed to allege a contractual relationship)).  
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objective reasonableness are questions of fact, based on all the circumstances.”). 
 
III. 
Plaintiffs State Claims for Breach of the EDD-BofA Contract as Third-
Party Beneficiaries (Counts 11, 12) 
Plaintiffs adequately plead that they are third-party beneficiaries of the EDD-
BofA Contract and that BofA breached the provisions they seek to enforce as well 
as the implied covenant of good faith and fair dealing. 
A. Plaintiffs Adequately Plead Third-Party Beneficiary Standing. 
As BofA acknowledges (Mot. at 21), third-party beneficiary status may be 
established by evidence that the contracting parties expressly intended to benefit a 
third party, including a showing that the contract terms at issue benefit only an 
identifiable third-party group. See, e.g., Zigas v. Superior Court, 120 Cal.App.3d 
827, 834-41 (1981) (tenants were third-party beneficiaries of rent-cap provisions in 
contract between landlord and government because tenants were only group that 
would benefit from rent caps, which “were obviously designed to protect” them and 
were “not intended to benefit the government”); Shell v. Schmidt, 126 Cal.App.2d 
279, 287, 289-90 (1954) (third-party veterans who purchased homes could enforce 
building specifications in homebuilder’s contract with government because they 
were “the class intended to be benefited”). Whether a person is an intended third-
party beneficiary is often a question of fact not suitable for resolution on a motion 
to dismiss. See Bozzio v. EMI Grp., 811 F.3d 1144, 1153-54 (9th Cir. 2016) (citing 
Prouty v. Gores Tech. Grp., 121 Cal.App.4th 1225, 1233 (2004)).25 
Here, Plaintiffs seek to enforce provisions of the EDD-BofA Contract that 
are plainly intended to benefit only EDD Debit Cardholders and not EDD. Those 
provisions include BofA’s promise “to apply ‘the most rigorous fraud detection 
 
25 See also Stasi v. Immediata Health Grp., 501 F.Supp.3d 898, 920 (S.D. Cal. 
2020) (third-party beneficiary allegations made on information and belief were 
sufficient at motion to dismiss stage); Vepo Design Corp. v. Am. Econ. Ins. Co., 
2020 WL 10689644, at *6 (C.D. Cal. Aug. 7, 2020); Deerpoint Grp., Inc. v. 
Agrigenix, LLC, 393 F.Supp.3d 968, 978 (E.D. Cal. 2019).  
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procedures,’ including ‘the highest level of security and fraud safeguards’ based on 
‘multiple layers of extensive security’ to ensure that EDD Debit Cardholders do 
not become the victims of fraud” (¶42) (emphasis added); to “fully protect EDD 
Debit Cardholders in case they became victims of fraud” by complying with EFTA 
and Regulation E (¶43) (emphasis added); to “extend our Zero Liability protection 
on disputed claims” to all cardholders (¶43); and to provide “‘[s]uperb customer 
service’” to cardholders, including by ensuring “that live CSR agents would be 
available 24/7 to assist EDD Debit Cardholders” (¶44) (emphasis added).  
Because EDD has no potential liability for fraud on the BofA-issued debit 
cards (¶54), these anti-fraud and customer-service guarantees benefit only 
cardholders, not EDD, and any breach of these provisions likewise harms only 
cardholders, not EDD. See Zigas, 120 Cal.App.3d at 837-38 (that breach of rent-
cap provisions would directly injure tenants, not the government, supported third-
party beneficiary standing). Unlike in Goonewardene v. ADP, LLC, 6 Cal.5th 817, 
834-35 (2019), in which the defendant payroll company contracted with the 
plaintiff’s employer with the sole intent of “provid[ing] a benefit to the employer” 
(id. at 830), here the contracting parties included anti-fraud and customer service 
obligations that could only have been intended to provide a benefit to the third-party 
cardholders.26 Allowing cardholders to enforce these contractual provisions is thus 
fully consistent with the parties’ reasonable expectations. ¶640.27 
 
26 Similarly, in Cleveland v. Ludwig Inst. for Cancer Research Ltd., 2020 WL 
3268578, at *8-9 (S.D. Cal. June 17, 2020) (applying Goonewardene), the 
motivating purpose of the funding provisions in an affiliation agreement between a 
cancer research institute and a university was to advance cancer research, not to 
fund specific third-party researchers’ work. 
27 Goonewardene is further distinguishable because the plaintiff employee had 
“no need” to sue the payroll company for alleged unpaid wages that she could fully 
recover directly from her employer. Id. at 836. Plaintiffs here have no similar 
recourse against EDD. And unlike in Cleveland, where there was “no apparent 
need” to recognize third-party rights because plaintiffs could bring suit “under their 
 
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BofA’s argument that Plaintiffs are merely incidental beneficiaries ignores 
the specific provisions of the EDD-BofA Contract that Plaintiffs seek to enforce, 
and relies on a single provision from the 600-plus-page contract stating that services 
will be provided “for the EDD.” Mot. at 21-22. But a contract “need not be 
exclusively for the benefit of the third party” to confer third-party standing; indeed, 
the third party need not even be the “primary beneficiary.” Prouty, 121 Cal.App.4th 
at 1233 (citing Johnson v. Superior Court, 80 Cal.App.4th 1050, 1064 (2000)); see, 
e.g., id. at 1233-34 (former employees were intended beneficiaries of contract 
provision notwithstanding general disclaimer of third-party rights); SEIU, Local 99 
v. Options, 200 Cal.App.4th 869, 872-73 (2011) (members of public were intended 
beneficiaries of contract provisions requiring contractor’s compliance with Brown 
Act); Amaral v. Cintas Corp. No. 2, 163 Cal.App.4th 1157, 1194 (2008), rev. denied 
(employees of government contractors were intended third-party beneficiaries of 
contract provisions requiring they be paid living wages).28 
 
B. Plaintiffs Adequately Plead Breach of the EDD-BofA Contract and 
the Implied Covenant of Good Faith and Fair Dealing. 
BofA is doubly wrong in arguing that its issuance of EDD Debit Cards 
without now-industry-standard EMV chips cannot breach the EDD-BofA Contract 
 
own individual employment contracts,” 2020 WL 3268578, at *10, here, the 
customer service and anti-fraud provisions of the EDD-BofA Contract do not 
appear in the Cardholder Agreement, so Plaintiffs have no first-party contractual 
basis for enforcing these same rights. 
28 Two cases cited by BofA (Mot. at 21), GECCMC 2005-C1 Plummer St. Office 
L.P. v. JPMorgan Chase Bank, N.A., 671 F.3d 1027, 1033 (9th Cir. 2012), and 
Klamath Water Users Protective Ass’n v. Patterson, 204 F.3d 1206 (9th Cir. 1999), 
are inapposite because they are based on federal common law, whereas Plaintiffs’ 
claims here are governed by California law. See SEIU Local 99, 200 Cal.App.4th 
at 878-83; Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020). 
In any event, they are distinguishable. See GECCMC, 671 F.3d at 1034 (contract 
had express disclaimer of intent to create third-party beneficiaries); Klamath Water 
Users, 204 F.3d at 1211-12 (contract merely preserved the United States’ control 
over the dam and its operations and did not confer rights on the irrigators). 
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simply because EDD’s 2015 Request for Proposals (“RFP”) required that Cards 
include a “magnetic strip.” Mot. at 23 (citing Chestnut Decl. Ex. 2, at 5 (Req. #323)) 
(requiring BofA to issue cards with “no less than an ISO 7811-compliant high 
coercivity magnetic strip”). First, all or virtually all U.S.-issued debit cards, 
including those issued by BofA, have both a magnetic strip and an EMV chip. See 
¶68. The RFP does not prohibit BofA from issuing such cards; it merely requires 
that the strip component of the card meet a certain ISO specification. Second, even 
though the RFP does not specifically require an EMV chip, BofA’s proposal in 
response to the RFP, which is incorporated into the terms of the EDD-BofA 
Contract, makes specific representations guaranteeing far more than the bare 
minimum in security—including by providing “the highest level of security and 
fraud safeguards” and by being “at the forefront of fraud and data security 
strategies.” ¶42; see also ¶¶69, 639. In breach of these contractual promises, BofA 
issued cardholders substandard cards that were highly susceptible to fraud because 
they did not include EMV chips—technology that BofA itself publicly 
acknowledges “has been around for over 20 years and is the credit and debit card 
security standard in many countries around the world,” and which BofA itself has 
included in all its consumer credit and debit cards since 2014. ¶68; see also ¶¶59-
67, 69, 639, 642.29 
Plaintiffs also allege that BofA breached its obligation under the EDD-BofA 
Contract to protect cardholders from liability for unauthorized transactions and to 
comply with all error resolution procedures under EFTA and Regulation E. ¶¶43, 
639, 642-43. Plaintiffs state a claim for breach of these provisions based on their 
allegations detailing how BofA failed to comply with EFTA, Regulation E, and 
 
29 BofA’s reliance on an online news article (Mot. at 5 n.6, 23) is improper on a 
Rule 12(b)(6) motion. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). 
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BofA’s own Zero Liability policy. See supra at 5-20.30 
Finally, Plaintiffs allege that BofA breached the EDD-BofA Contract 
provisions requiring it to provide cardholders certain minimum levels of customer 
service, such as live CSR support “24 hours a day, seven days a week” to assist 
cardholders with “[i]nvestigat[ing] transactions (fraud, security, use)” and 
“[c]heck[ing] on the Status of Disputed Transactions.” ¶¶44, 639, 642. BofA did so 
by failing to make its “Claims Initiation Call Center” and “Fraud Call Center” 
available 24/7, preventing cardholders from submitting unauthorized transaction 
claims outside of limited business hours, keeping callers on hold for hours, and 
repeatedly dropping calls or sending callers directly to voicemail without offering 
meaningful assistance. See supra note 3, item 1; ¶110 & MCC Ex. B, paras. 8-10.  
BofA’s reliance on an August 2020 letter agreement purportedly amending 
certain customer service requirements is misplaced. See Mot. at 23 (citing Chestnut 
Decl. Ex. 3). Even if appropriately considered on a Rule 12(b)(6) motion, which it 
is not (see Pls.’ Opp’n to Def.’s RJN), the letter agreement does not excuse BofA’s 
contractual obligation to “provide and maintain a CSC [Customer Service Center] 
seven (7) days a week, twenty-four (24) hours per day.” Chestnut Decl. Ex. 3, at 12, 
16 (Req. #224, 225). Instead, it only provides an “accommodation[]” to that 
requirement allowing up to “four (4) hours per month” for “routine scheduled 
maintenance.” Id. Further, the letter agreement purports to excuse compliance only 
with certain contractual requirements listed in its Appendix 1—e.g., the 
requirement that BofA “limit the average wait time to speak to a live CSR to no 
more than 30 seconds for 70 percent of the calls, and no more than two (2) minutes 
for all calls” (id. at 14 (Req. #226))—and only if the non-compliance occurs 
“despite [BofA]’s use of efforts that are commercially reasonable in the context of 
 
30 Because Plaintiffs identify the specific provisions of the EDD-BofA Contract 
that BofA allegedly breached, Ironshore Specialty Ins. Co. v. 23andMe, Inc., 2018 
WL 5316173, at *2 (N.D. Cal. Oct. 26, 2018), is inapposite. 
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the COVID-19 pandemic” (id. at 12). Even under this standard, Plaintiffs have 
stated a breach of contract claim, as BofA’s abysmal customer service was not 
“commercially reasonable” by any measure. ¶642(f)-(g). Even if the letter 
agreement were operative during all relevant times (which BofA has not established 
and cannot establish on a Rule 12(b)(6) motion), excusing violations of the 30-
second wait time requirement cannot justify routinely keeping cardholders on hold 
for hours when those cardholders were seeking to regain access to desperately 
needed EDD benefits during a pandemic. 
To the extent BofA had any discretion in performing its duties under the 
EDD-BofA Contract, it exercised that discretion in objectively unreasonable ways, 
breaching the implied covenant of good faith and fair dealing by depriving Plaintiffs 
as third-party beneficiaries of the contract’s benefits. See ¶¶646-48. 
IV. 
Plaintiffs State Claims under the CCPA and CCRA (Counts 2, 3) 
BofA’s principal CCPA argument is that Plaintiffs cannot state a claim based 
on BofA’s failure to add EMV chips to its cards because “[t]here is no existing duty 
on financial institutions to issue cards with EMV chips instead of magnetic strips” 
and the EDD-BofA Contract only “require[s] magnetic strip technology.” Mot. at 
29-30. BofA is wrong on both counts.  
First, the CCPA requires BofA to have “reasonable security procedures and 
practices appropriate to the nature of the information.” Cal. Civ. Code 
§1798.150(a)(1). This includes a duty to implement security procedures and 
practices consistent with industry standards. See, e.g., Dugas v. Starwood Hotels & 
Resorts Worldwide, Inc., 2016 WL 6523428, at *10-11 (S.D. Cal. Nov. 3, 2016) 
(denying motion to dismiss CCRA claim where complaint alleged defendant failed 
to “appropriately encrypt customers’ data” and to employ security systems 
“consistent with industry standards and requirements”); In re Brinker Data Incident 
Litig., 2020 WL 691848, at *17 (M.D. Fla. Jan. 27, 2020) (allegations that defendant 
had sub-industry standard security measures stated UCL claim based on predicate 
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violations of CCRA’s reasonable security practices provision).31 Here, Plaintiffs 
allege—and BofA has publicly acknowledged—that “EMV chip technology ‘has 
been around for over 20 years and is the credit and debit card security standard in 
many countries around the world.’” ¶68. Consistent with that industry standard, 
BofA began adding EMV chips to its corporate credit cards as early as 2011 and to 
its consumer debit cards in 2014. ¶¶64-65; see also ¶¶59-69 (detailing BofA’s 
awareness and use of EMV chip technology as an industry standard). Allegations 
regarding BofA’s failure to comply with industry security standards are sufficient 
to state claims under the CCPA and CCRA.  
Moreover, even if there were no general duty to include industry-standard 
EMV chip technology on all credit and debit cards, imposing such a duty on issuers 
of government-sponsored debit cards whose purpose is to disburse subsistence UI 
benefits is certainly “reasonable” and “appropriate to the nature of the information” 
at issue, given the heightened vulnerability of such cardholders to the consequences 
of security breaches that could deprive them of essential public benefits on which 
they depend for basic needs, such as food, shelter, and medicine. See, e.g., ¶¶114-
285, 626. 
Second, the 2015 RFP’s magnetic strip specification does not excuse BofA’s 
failure in 2020 or 2021 to add the same industry-standard EMV chip technology to 
its EDD Debit Cards that it uses in all its other debit and credit cards. See ¶¶42, 69. 
The RFP certainly cannot excuse BofA’s statutory obligation to its cardholders 
under the CCPA to maintain reasonable security practices “appropriate to the nature 
of the information,” because the CCPA expressly renders void and unenforceable 
 
31 Like the CCPA, the CCRA requires businesses to “implement and maintain 
reasonable security procedures and practices appropriate to the nature of the 
information, to protect the personal information from unauthorized access, 
destruction, use, modification, or disclosure.” Cal. Civ. Code §1798.81.5(b). 
Because the CCPA’s private right of action arises from the CCRA, id. 
§1798.150(a)(1), courts discussing the sufficiency of claims based on violations of 
the duty sometimes cite the CCRA section imposing the duty instead of the CCPA.  
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any “provision of a contract or agreement of any kind that purports to waive or limit 
in any way a consumer’s rights [under the CCPA]” on the basis that such a provision 
would be contrary to public policy. Cal. Civ. Code §1798.192. 
 
BofA’s remaining arguments also fail. BofA contends that Plaintiffs’ 
allegations are factually deficient, but Plaintiffs expressly allege that BofA’s 
inadequate security practices—including its failure to “ensure that all [of its agents] 
were subject to background checks before or after being hired,” “to provide such 
agents proper training and supervision regarding their handling and maintaining the 
confidentiality of Cardholders’ [PI],” and “to secure Cardholders’ [PI] from 
unnecessary and unauthorized access by subcontractors’ employees and others”—
“enabled a series of internal data breached committed by [subcontractor] TTEC 
employees,” ¶¶553, 598; see also ¶¶55-58, 554-55, 595-97. These factual 
allegations are specific and concrete, not “vague” and “conclusory.” Mot. at 30; see 
infra at 33-36.  
Plaintiffs’ other allegations, including those made on information and belief, 
further support their CCPA and CCRA claims. See Karter v. Epiq Sys., Inc., 2021 
WL 4353274, at *3 (C.D. Cal. July 16, 2021) (refusing to dismiss CCPA claim 
where “[p]laintiff alleged that his [PI] was exfiltrated in a nonencrypted and 
nonredacted form”); see also infra at 35. Further, the plausibility of Plaintiffs’ 
allegations that BofA collected, stored, and transmitted cardholders’ PI in an 
unsecure manner is underscored by the experiences of plaintiffs like Stephanie 
Smith, whose PI was compromised and whose account was hacked despite her 
never having used her physical card, which she kept locked in a safe immediately 
upon activating it on BofA’s website. ¶¶58, 200. It is certainly reasonable to infer 
that her PI would not have been accessed absent a security failure by BofA. See 
Grandesign, 2021 WL 780477, at *1.  
BofA’s reliance on In re Yahoo! Inc. Customer Data Sec. Breach Litig., 2017 
WL 3727318, at *38 (N.D. Cal. Aug. 30, 2017) (“Yahoo!”), is misplaced. Here, 
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unlike in Yahoo! where the breach had occurred several years earlier (id., at *2-3), 
there is no colorable argument that BofA was unaware of the security breaches. As 
discussed above (at 6-8), the MCC details how each Plaintiff provided timely notice 
of the fraud and how the wave of transaction fraud affecting EDD Debit 
Cardholders was widely reported in the media, all of which put BofA on notice of 
the security breaches. Additionally, in Yahoo!, the plaintiffs did not allege that the 
company had any involvement in the alleged breach or that due to such involvement 
it should have known when the breach occurred. Id., at *4-6. Here, Plaintiffs allege 
that BofA’s own agents were responsible for the breaches and that BofA discovered 
or should have discovered the breaches when they occurred, including because of 
the huge volume of unauthorized transaction complaints it received during a 
relatively short time frame. ¶599. Yet it still failed to provide notice to the affected 
cardholders in violation of the CCRA. ¶571; see Grandesign, 2021 WL 780477, at 
*1 (plaintiff entitled to reasonable inferences where factual allegations “‘raise a 
reasonable expectation that discovery will reveal evidence’ supporting that 
inference”) (citation omitted). 
V. 
Plaintiffs State Claims for Negligence and Negligent Supervision 
(Counts 5, 6) 
BofA contends that Plaintiffs’ negligence claims (¶¶586-87) are barred by 
the economic loss rule because it owes no tort duties to Plaintiffs, and that the MCC 
fails to adequately plead the elements of negligence. Those arguments also fail.32  
A. The Economic Loss Rule Does Not Apply. 
The economic loss rule does not apply for two separate and independent 
reasons: (1) Plaintiffs’ harms are not purely economic, and (2) BofA’s “conduct 
 
32 BofA’s threshold argument that the economic loss rule precludes all 
negligence claims except those seeking damages for personal injury (Mot. at 24) is 
plainly wrong. See N. Am. Chem. Co. v. Superior Court, 59 Cal.App.4th 764, 783 
(1997) (“economic damages claimed by a plaintiff need not be accompanied by 
personal injury or property damage in order to be recoverable”) (citation omitted). 
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‘violate[d] [duties] independent of the contract.’” Pac. Concours Corp. v. Fives 
Machining Sys., Inc., 2018 WL 6204579, at *7 (C.D. Cal. Oct. 29, 2018) (quoting 
Erlich v. Menezes, 21 Cal.4th 543, 551 (1999)).  
First, the economic loss rule applies only to claims seeking recovery for 
“purely economic losses,” meaning “pecuniary or commercial loss” not arising 
from injury to persons or property. S. Cal. Gas Leak Cases, 7 Cal.5th 391, 398 
(2019). The rule does not apply here because Plaintiffs suffered harms beyond 
purely economic losses, including the denial of access to necessary information and 
wasted time caused by grossly inadequate customer service. See supra note 3, items 
1, 5; Stasi v. Inmediata Health Grp. Corp., 501 F.Supp.3d 898, 913 (S.D. Cal. 2020) 
(alleged “time spent responding to a data breach is a non-economic injury, that … 
defeats an economic loss doctrine argument”); Bass v. Facebook, Inc., 394 
F.Supp.3d 1024, 1039 (N.D. Cal. 2019) (same). 
Second, even if Plaintiffs’ allegations were limited to purely economic losses 
(which they are not), the economic loss rule still would not apply because Plaintiffs 
seek to enforce a tort duty that arises independent of any contract. See Erlich, 21 
Cal.4th at 551 (“[C]onduct amounting to a breach of contract becomes tortious … 
when it also violates a duty independent of the contract arising from principles of 
tort law.”). Plaintiffs here allege that BofA violated extracontractual duties arising 
from two sources: several statutes and BofA’s “special relationship” with Plaintiffs. 
A tort “duty of care may arise through statute.” J’Aire Corp. v. Gregory, 24 
Cal.3d 799, 803 (1979). Courts have found, for example, that the Gramm-Leach-
Bliley Act (“GLBA”), the California Financial Information Privacy Act (“CFIPA”), 
and other statutes impose on banks a statutory duty of care to safeguard their 
customers’ PI. See, e.g., Erhart v. BofI Holding, Inc., 2020 WL 1550207, at *38 
n.26 (S.D. Cal. Mar. 31, 2020). Here, Plaintiffs allege that BofA owed Plaintiffs 
statutory duties under the GLBA, CFIPA, CCPA, and CCRA. ¶¶589-92. Plaintiffs’ 
allegations about BofA’s unreasonable data security practices further plead that 
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BofA breached those duties (see ¶¶55-58, 69, 76-86, 116, 206, 553, 556, 577(a)-(f), 
579-82, 595-99, 642(a), 648(a)-(c)) and that its breaches resulted in widespread 
theft, fraudulent charges, and unauthorized disclosure of cardholders’ PI (¶¶76-79, 
542), including for cardholders who never used their card or card information to 
complete a transaction (see ¶¶57 n.3, 200).33  
Independent tort duties also arise between parties when, as here, a “special 
relationship” exists. Pac. Concours Corp., 2018 WL 6204579, at *7. To determine 
whether a “special relationship” exists, courts weigh six factors: “(1) the extent to 
which the transaction was intended to affect the plaintiff, (2) the foreseeability of 
harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) 
the closeness of the connection between the defendant’s conduct and the injury 
suffered, (5) the moral blame attached to the defendant’s conduct and (6) the policy 
of preventing future harm.” J’Aire, 24 Cal.3d at 804; Aas v. Superior Court, 24 
Cal.4th 627, 645 (2000) (J’Aire factors apply to parties in contractual privity), 
superseded by statute on other grounds. Based on these factors, Plaintiffs more than 
adequately allege a special relationship. 
First, BofA’s role in distributing EDD benefits was “intended to affect” 
Plaintiffs. For example, all EDD Debit Cardholders trusted BofA to implement 
reasonable data security practices to protect their account funds and PI (which they 
 
33 BofA’s alleged unreasonable data security practices include: (1) failing to add 
EMV chips to Cards; (2) hiring thousands of CSRs without conducting background 
checks; (3) failing to appropriately limit CSRs’ access to Plaintiffs’ PI; (4) failing 
to ensure CSRs received reasonable training and supervision on data security 
practices; (5) continuing to use TTEC despite knowing of its inadequate data 
security practices and resulting thefts of Plaintiffs’ PI; (6) failing to adjust its data 
security practices in anticipation of widely predicted surges in transactional fraud; 
and (7) failing to monitor for, detect, and promptly notify cardholders about 
suspicious transactions, or to conduct reasonable investigations of suspicious and 
disputed transactions as part of its ongoing GLBA obligation to continuously 
evaluate the effectiveness of and make necessary adjustments to its information 
security procedures. Id. 
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were required to disclose to BofA) and to provide reasonable access to CSRs when 
these breaches occurred. ¶¶39, 46-47, 55-56; see Corona v. Sony Pictures Ent., Inc., 
2015 WL 3916744, at *5 (C.D. Cal. June 15, 2015) (factor satisfied where plaintiff 
had to disclose PI to obtain employment benefits); Huynh v. Quora, Inc., 508 
F.Supp.3d 633, 655 (N.D. Cal. 2020) (“Huynh II”) (factor satisfied where plaintiffs 
shared their PI “with the understanding that [defendant] will protect that data”). 
Second, the harm was foreseeable, as BofA was fully aware of the 
consequences of inadequate customer service and security. ¶¶68-69, 81-86, 88, 556, 
577, 591, 599, 615. BofA’s assertion that the “surge in fraud” was “wholly-
unexpected” (Mot. at 1) is a disputed fact directly contradicted by the MCC (¶79 & 
nn.6-10).  
 Third, there is a high “degree of certainty” that Plaintiffs suffered resulting 
injury, including by having to waste tens of hours due to inadequate customer 
service, having their EDD benefits stolen from their accounts, and having their PI 
stolen and disclosed. ¶¶4, 591-92; see Corona, 2015 WL 3916744, at *3, 5 (alleged 
“lost opportunity costs” and “inability to use” frozen assets provided sufficient 
“degree of certainty” at pleading stage); Garcia v. Ocwen Loan Servicing, LLC, 
2010 WL 1881098, at *1-3 (N.D. Cal. May 10, 2010) (homeowner stated 
negligence claim against lender based on difficulty reaching customer service and 
lender misrouting homeowner’s loan modification application). 
Fourth, Plaintiffs’ injuries are closely connected to BofA’s conduct. ¶¶4, 
591-92; see Huynh v. Quora, Inc., 2020 WL 7408230, at *8 (N.D. Cal. June 1, 2020) 
(“Huynh I”) (fourth factor satisfied where damages alleged from failure to protect 
PI); Portier v. NEO Tech. Solutions, 2019 WL 7946103, at *17 (D. Mass. Dec. 31, 
2019) (harm was “natural consequence” of “careless release of information” under 
California law). 
Fifth, BofA’s alleged negligence is morally condemnable, especially since 
the alleged purpose of BofA’s wrongful conduct was to limit costs and otherwise 
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“protect its own financial interests at the expense of” tens of thousands of 
cardholders who needed their EDD benefits to survive. ¶¶40-45, 49, 91, 588-90; see 
Am. Fed’n of Labor v. EDD, 88 Cal.App.3d 811, 821 (1979) (“AFL”) (EDD benefits 
recipients often have no money and need benefits to survive “at subsistence 
levels”); Huynh II, 508 F.Supp.3d at 658 (failure to protect PI is “morally 
blameworthy”). 
Sixth, BofA’s negligence in allowing the rampant theft of PI and government 
benefits strongly militates in favor of finding a special relationship to further the 
“policy of preventing future harm.” See MCC Ex. A at 2 (Judge Chhabria: harm 
irreparable because loss of benefits “will seriously hinder the ability of many class 
members to feed their families and keep a roof over their heads” and “likely cause 
them to be evicted, go hungry, or be denied medical care”); In re Yahoo! Inc. 
Customer Data Sec. Breach Litig., 313 F.Supp.3d 1113, 1132-33 (N.D. Cal. 2018) 
(failure to protect PI implicates policies underlying California statutes, such as 
CCRA); Huynh I, 2020 WL 7408230, at *9 (similar). 
BofA’s authorities are inapposite34 and speak only to the bank-depositor 
 
34 See Mot. at 24-25 (citing Widjaja v. JPMorgan Chase Bank, N.A., 2020 WL 
2949832 (C.D. Cal. Mar. 31, 2020) (dismissing negligence claim by ordinary 
banking customer based solely on alleged breaches of contractual duty); Spa-Kur 
Therapy Dev., Inc. v. Bank of Am., N.A., 2019 WL 1099834 (S.D. Cal. Mar. 8, 2019) 
(same); Barvie v. Bank of Am., N.A., 2018 WL 4537723 (S.D. Cal. Sept. 21, 2018) 
(parties agreed any duty arose solely from ordinary bank-customer contract); Simi 
Mgmt. Corp. v. Bank of Am., N.A., 930 F.Supp.2d 1082 (N.D. Cal. 2013) (discussing 
implied contractual duties banks owe ordinary customers, without addressing 
negligence or economic loss rule); Smith v. Visa U.S.A., Inc., 2011 WL 2709819 
(N.D. Cal. July 12, 2011) (pro se plaintiff sought $2.8 billion for “strict liability” 
on bare allegations); Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 2016 
WL 6523428 (S.D. Cal. Nov. 3, 2016) (hotel guest alleged “no facts” showing 
special relationship); Nevada Fleet LLC v. Fedex Corp., 2021 WL 2402953 (E.D. 
Cal. June 11, 2021) (claims based on business-to-business sale of used vehicles 
through third party); Valenzuela v. ADT Sec. Servs., Inc., 820 F.Supp.2d 1061 (C.D. 
Cal. 2010) (summary judgment ruling that alarm company had no extracontractual 
duties to burgled store)). 
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relationship “[u]nder ordinary circumstances.” Belluomini v. Citigroup, Inc., 2013 
WL 3855589, at *5 (N.D. Cal. July 24, 2013) (citation omitted). Here, the 
relationship between cardholders and BofA is anything but “ordinary,” as BofA is 
not acting as an ordinary bank but as the exclusive distributor of cardholders’ public 
benefits (¶¶2, 35), on which cardholders are uniquely “depend[ent] … to get 
through the pandemic” (MCC Ex. A at 2). Further, cardholders do not have ordinary 
BofA accounts but special benefits-only accounts (¶48); and the customer service 
available to cardholders is separate from (and far worse than) the customer service 
available to ordinary BofA customers (¶87).  
B. Plaintiffs Adequately Allege Negligence. 
BofA argues Plaintiffs do not adequately plead that its failure to add EMV 
chips to EDD Debit Cards caused harm, and the negligence per se claims regarding 
its inadequate data security practices are insufficiently detailed. Mot. at 25-26. As 
for negligent hiring, supervision, and retention, BofA contends that Plaintiffs do not 
adequately plead breach or causation. Mot. at 26-27. These arguments lack merit. 
Plaintiffs’ claims for negligent data and account security practices target 
many of BofA’s practices, just one of which is its failure to add EMV chips to 
Cards. See ¶¶57, 586-87; supra note 33, item 1. On that EMV chip issue, Plaintiffs 
allege that BofA has long known that use of EMV chips is the industry standard 
because cards without such chips are highly vulnerable to fraud (¶¶59-69); that 
BofA nevertheless issued EDD Debit Cards without chips, even during the 
pandemic, despite the widely-predicted and reported surge in transactional fraud 
(¶¶9-33, 69, 79); and that this “led to rampant fraud” and “the ongoing loss of 
millions of dollars in EDD benefits” through transactional fraud on accounts (¶69). 
Once plaintiffs have sufficiently pleaded a duty to “provide reasonable security,” 
the “burden to plead a corresponding breach based on … inadequate security 
measures is not high,” Schmitt v. SN Servicing Corp., 2021 WL 3493754, at *5 
(N.D. Cal. Aug. 9, 2021), as it is reasonably “foreseeable” that inadequate or 
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outdated security measures would cause “a data breach [to] occur and that Plaintiffs 
would suffer harm.” Corona, 2015 WL 3916744, at *5; see also Flores-Mendez v. 
Zoosk, Inc., 2021 WL 308543, at *4 (N.D. Cal. Jan. 30, 2021) (“The breach would 
not have occurred but for inadequate security measures, or so it can be reasonably 
inferred at the pleadings stage.”).35 Moreover, because Plaintiffs plausibly allege 
BofA’s failure to use EMV chips violated the GLBA, CFIPA, CCPA, and CCRA, 
BofA’s negligence may be presumed. Nowlon v. Koram Ins. Ctr., Inc., 1 
Cal.App.4th 1437, 1441 (1991). 
Many Plaintiffs also detail how the fraud on their accounts occurred,36 and 
allege it was only after they had used their cards for everyday transactions that they 
began experiencing fraud. See, e.g., ¶¶115, 127, 136, 203. At least one Class 
Plaintiff specifically alleges “her Card was skimmed” (to which non-EMV chip 
cards are susceptible) at a gas station where other cards were also reportedly 
skimmed. ¶¶2, 61, 187. These allegations, which support a plausible inference that 
Plaintiffs’ card information was exfiltrated due to making transactions without an 
EMV chip, are sufficient at the pleading stage. 
On the negligence per se theories, BofA argues that Plaintiffs fail to allege 
how BofA and its agents “actually stored or transmitted” card and account 
information in violation of the GLBA, and precisely “when,” “to whom,” and “in 
what context” such information was disclosed in violation of the CFIPA. Mot. at 
25-26. Those arguments mischaracterize the MCC and misstate the pleading 
standards. First, the MCC details BofA’s deficient data security practices, see supra 
at 30 & note 33, each of which is sufficient to support predicate violations. To the 
 
35 Courts recognize “it is reasonable to infer that [a] data breach” will result in 
later injury because the breach can “drastically increase[]” the risk of identity theft 
“relative to both the time period before the breach, as well as to the risk born by the 
general public.” Corona, 2015 WL 3916744, at *4. Thus, the risk of fraud or 
exfiltration are cognizable harms, contrary to BofA’s contentions (Mot. at 27). 
36 See, e.g., ¶¶114, 128, 137, 144, 152, 160, 172, 187, 195, 200, 204, 216, 225, 
230, 238, 246, 250, 254, 258, 268. 
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extent Plaintiffs’ allegations are based on information and belief, they are sufficient 
because courts “relax pleading requirements” and permit such allegations when, as 
here, “the facts are peculiarly within the possession and control of the defendant or 
where the belief is based on factual information that makes the inference of 
culpability plausible.” Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017); see 
also Stasi, 501 F.Supp.3d at 920 (denying dismissal where, “without discovery, it 
is not clear what more Plaintiffs could plead”); Moser v. Health Ins. Innovations, 
Inc., 2018 WL 325112, at *7 (S.D. Cal. Jan. 5, 2018) (denying dismissal where facts 
pled on “‘information and belief’” were “peculiarly within the possession and 
control” of defendants). This is particularly true in data breach cases, where 
“virtually all of the details that defendants insist on are in possession of the 
defendants, and not in possession of plaintiff.” Flores-Mendez, 2021 WL 308543, 
at *4; see also Stasi, 501 F.Supp.3d at 914 (rejecting, for similar reasons, argument 
at pleading stage that economic loss rule defeated negligence claim). 
Regarding the negligent hiring and supervision claim, Plaintiffs allege BofA 
subcontracted much of its customer service to TTEC, which hired “hundreds if not 
thousands of [CSRs]” without any background checks, gave those “unvetted” CSRs 
open access to cardholders’ PI, failed to secure PI from “unnecessary or 
unauthorized access” and “disclosure,” and failed to train or supervise CSRs on data 
security practices. ¶¶55, 595-96. This was a clear breach of BofA’s duty of care. 
See Portier, 2019 WL 7946103, at *13 (failure to provide supervision and training 
to prevent employees from releasing sensitive tax data breached duty of care).37  
Plaintiffs further allege that these breaches of duty foreseeably resulted in the 
theft and disclosure of cardholders’ PI through “a series of internal data breaches 
committed by TTEC employees,” that the breaches resulted in rampant fraudulent 
 
37 In contrast to BofA’s cited cases, Plaintiffs set forth specific facts regarding 
how BofA breached its duty, not mere “conclusions,” Abdulaziz v. Twitter, Inc., 
2020 WL 6947929, at *7 (N.D. Cal. Aug. 12, 2020), or “pure speculation,” Nemet 
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 259 (4th Cir. 2009). 
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charges on EDD Debit Card accounts, that BofA knows all this but negligently 
continued to use TTEC to operate its call centers, and that this conduct harmed and 
“continues to harm Plaintiffs and Class Members by subjecting them to 
unreasonable risk of fraud and exfiltration of their [PI].” ¶¶597-99. Such allegations 
are sufficient to plausibly allege causation at the pleading stage. See Portier, 2019 
WL 7946103, at *14; Top Trade v. Grocery Outlet, 2018 WL 6038297, at *4 (C.D. 
Cal. May 9, 2018) (drawing reasonable inference that data breach “likely occurred 
due to problems with Defendant’s cybersecurity practices and procedures”). 
C. Plaintiffs Have Standing to Pursue Injunctive Relief.  
Plaintiffs seek injunctive relief to prevent likely future harm from an 
“unreasonable risk of fraud and exfiltration” due to BofA’s ongoing negligent 
hiring, supervision, and retention of its agents. ¶¶598, 602. BofA contends that no 
Class Plaintiff has Article III standing to seek this relief. Mot. at 27.38  
“An allegation of future injury” establishes Article III standing “if the 
threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that the 
harm will occur.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) 
(quoting Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138, 1150 n.5 (2013)) (emphasis 
added); see also Spokeo, Inc. v. Robins, 578 U.S. 330, 342 (2016) (“material risk of 
harm” can be Article III injury). At the pleading stage, suits should proceed when 
plaintiffs demonstrate a factual issue about “whether they suffer a substantial risk 
of [future] harm.” Cent. Delta Water Agency v. United States, 306 F.3d 938, 947-
48 (9th Cir. 2002). Article III’s injury-in-fact requirement poses only “a low 
threshold,” Ross v. Bank of Am., N.A.(USA), 524 F.3d 217, 222 (2d Cir. 2008), that 
 
38 BofA does not challenge Plaintiffs’ standing to seek relief for past or present 
injuries due to negligent hiring or supervision, or for future harm under other claims. 
See Mot. at 27; see also MCC Ex. B at 1 (noting “plaintiffs and defendants worked 
together to craft preliminary injunction … to protect the class members from future 
harm” in areas of claims investigation, use of the Claim Fraud Filter, account 
freezing and blocking, and customer service).  
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“in no way depends on the merits” of the underlying claim, Whitmore v. Arkansas, 
495 U.S. 149, 155 (1990). 
Ninth Circuit precedent disposes of BofA’s argument that Plaintiffs lack 
standing to seek injunctive relief to redress future harms from the past or ongoing 
theft of their PI. See Krottner v. Starbucks Corp., 628 F.3d 1139, 1143 (9th Cir. 
2010) (Article III injury based on “a credible threat of real and immediate harm 
stemming from the theft of … their unencrypted” PI);39 In re Adobe Sys., Inc. Priv. 
Litig., 66 F.Supp.3d 1197, 1211-16 (N.D. Cal. 2014) (rejecting argument that 
“increased risk” of harm from theft of PI was not cognizable Article III injury). 
Standing is even more likely to be found in cases like this, where Plaintiffs 
allege that the theft of card information has already led to unauthorized transactions. 
See, e.g., Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 965, 967 (7th 
Cir. 2016) (noting one named plaintiff had fraudulent charges and finding theft of 
card information created “increased risk of fraudulent charges and identity theft” 
sufficient to confer standing); Remijas v. Neiman Marcus Grp., LLC, 794 F.3d 688, 
690, 693 (7th Cir. 2015) (allegations hackers stole card information and customers 
reported fraudulent charges created plausible inference of “substantial risk of harm” 
that conferred class standing, and there was “no need to speculate as to whether 
[named plaintiffs’] information has been stolen and what information was taken”).40 
 
39 Courts have repeatedly held the 2010 Krottner decision is consistent with 
Clapper and remains binding law. See, e.g., In re Adobe, 66 F.Supp.3d 1197, 1211-
14 (N.D. Cal. 2014); In re Sony Gaming Networks & Customer Data Sec. Breach 
Litig., 996 F.Supp.2d 942, 961-62 (S.D. Cal. 2014). 
40 See also Jay P. Kesan & Carol M. Hayes, Liability for Data Injuries, 2019 
Univ. of Ill. L. Rev. 295, 343 (2019) (“The general rule forming from standing cases 
appears to be a preference for finding standing when there has at least been one 
incident of attempted fraud,” such as “a fraudulent credit card charge”); Thomas 
Martecchini, Note, A Day in Court for Data Breach Plaintiffs: Preserving Standing 
Based on Increased Risk of Identity Theft After Clapper v. Amnesty International 
USA, 114 Mich. L. Rev. 1471, 1485-87 (2016) (concluding courts in data breach 
cases decide whether future harm is imminent at pleading stage based on alleged 
 
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Here, Plaintiffs adequately allege Article III injury because they allege facts 
that establish a substantial risk of harm. Unlike the Clapper plaintiffs’ allegations 
that a speculative chain of future events might eventually lead to their 
communications being intercepted, Plaintiffs here allege their PI has already been 
stolen, that criminals have already used that information to make fraudulent charges 
on their EDD Debit Card accounts, and that thousands of other Class Members have 
already experienced fraudulent charges as well. For Plaintiffs and Class Members, 
the increased risk of future fraudulent charges and identity theft, and future theft of 
data due to BofA’s and TTEC’s ongoing negligent practices, is real and substantial. 
VI. 
Plaintiffs State a Claim for Breach of Fiduciary Duty (Count 10) 
BofA disclaims having a fiduciary duty to Plaintiffs (Mot. at 27-29), but the 
MCC plausibly alleges the existence of a fiduciary relationship that is different from 
an ordinary bank-depositor relationship. See Kudokas v. Balkus, 26 Cal.App.3d 744, 
750 (1972) (“Existence of fiduciary relationship depends on the circumstances of 
each case and is a question of fact for the fact trier.”). 
First, a bank owes a fiduciary duty to a depositor where, unlike in an ordinary 
bank-depositor relationship, their relationship involves: “(1) inherently unequal 
bargaining positions; (2) nonprofit motivation [by the depositor], i.e., objective of 
securing peace of mind, security; (3) inadequacy of ordinary contract damages; 
(4) special vulnerability of one party to harm … and (5) awareness by the other of 
this special vulnerability.” Copesky v. Superior Court, 229 Cal.App.3d 678, 687 n.7 
(1991) (citing Wallis v. Superior Court, 160 Cal.App.3d 1109, 1118 (1984)).  
The MCC alleges such a relationship: (1) The parties here were in grossly 
unequal bargaining positions. BofA is the only bank authorized to issue EDD Debit 
Cards, and BofA’s monopoly power forced Plaintiffs to accept the terms of its non-
negotiable Cardholder Agreement. ¶¶46-47, 627, 630. (2) Plaintiffs had no profit 
 
sensitivity of data at issue, data thief’s intentions, defendant’s methods of protecting 
data, and whether there has already been actual or attempted misuse of stolen data). 
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motive; they sought EDD benefits to survive “at subsistence levels,” AFL, 88 
Cal.App.3d at 821, and to “secure their peace of mind … to pay for housing, food, 
and other daily necessities.” ¶631. (3, 4) Given Plaintiffs’ “precarious financial 
position,” delayed lump-sum contract damages could not adequately remedy 
Plaintiffs’ injury, “namely[,] the immediate inability to support oneself and its 
attendant horrors.” Wallis, 160 Cal.App.3d at 1109; see also AFL, 88 Cal.App.3d 
at 821 (“A lump sum payment, which claimants who successfully appeal a denial 
of continuing [unemployment] benefits receive, defeats the purpose of 
unemployment insurance.”); MCC Ex. A at 2 & n.1. (5) BofA knew that Plaintiffs, 
“as public benefits recipients, are members of a uniquely vulnerable segment of the 
population” who depended on BofA to distribute life sustaining EDD benefits. 
¶626; cf. Copesky, 229 Cal.App.3d at 692 (“dependent people” who rely upon 
“liquidity of their bank account” are uniquely vulnerable). 
Second, BofA owed fiduciary duties because the EDD-BofA Contract 
expressly provides BofA will hold the EDD Debit Card account funds “‘in trust’ … 
for the cardholders.” Danitz Decl., Ex. B at 19 (“Contractor’s Trust Account”). That 
is more than sufficient at the pleading stage to allege BofA owed fiduciary duties 
by holding the funds EDD deposited in trust for Plaintiffs’ benefit. Chang v. 
Redding Bank, 29 Cal.App.4th 673, 684 (1994) (“A trust is a fiduciary relationship”); 
Moeller v. Superior Court, 16 Cal.4th 1124, 1133-34 (1997) (“A trust is a fiduciary 
relationship with respect to property in which the [trustee] … has an equitable 
obligation to manage the property for the benefit of another—the beneficiary”). 
VII. Plaintiffs State Claims for Violations of the UCL (Count 4) 
California’s UCL was “intentionally framed” in “sweeping language” to 
enable courts to address “the innumerable new schemes which the fertility of man’s 
invention would contrive.” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel. 
Co., 20 Cal.4th 163, 181 (1999) (cleaned up). It prohibits “any unlawful, unfair or 
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fraudulent business act or practice.” Cal. Bus. & Prof. Code §17200. Plaintiffs bring 
claims under the “unlawful” and “unfair” prongs of the UCL. ¶¶577-82.  
A. Plaintiffs Adequately Allege “Unlawful” and “Unfair” Acts or Practices. 
“Virtually any law or regulation—federal or state, statutory or common 
law—can serve as a predicate for an ‘unlawful’ prong violation.” Candelore v. 
Tinder, Inc., 19 Cal.App.5th 1138, 1155 (2018). Here, BofA’s challenged conduct 
is “unlawful” because as discussed herein it violates EFTA, CCPA, CCRA, GLBA, 
CFIPA, due process, and common law. ¶¶579-82; see also MCC Ex. A. at 1 (“strong 
likelihood” BofA was violating EFTA, “systematically breaching” its cardholder 
agreements, and violating UCL). Each of these claims “identify the particular 
section of the statute that was violated” and “describe with reasonable particularity 
the facts supporting the violation.” In re Solara Med. Supplies, LLC Customer Data 
Sec. Breach Litig., 2020 WL 2214152, at *11 (S.D. Cal. May 7, 2020). 
BofA’s practices are also “unfair.” ¶¶577-78.41 The UCL term “‘unfair’ … 
undeniably establishes only a wide standard to guide courts of equity” in dealing 
with business practices that “may run the gamut of human ingenuity and chicanery.” 
Cel-Tech, 20 Cal.4th at 181. “[U]nfair” practices are those that “offend[] an 
established public policy or … [are] immoral, unethical, oppressive, unscrupulous or 
 
41 The alleged unfair practices include (1) failing to secure cardholders’ PI, 
including by failing to use EMV chips, ¶577(a)-(c), (e); (2) failing to use reasonable 
practices to monitor for, detect, stop, and promptly notify cardholders about 
suspicious transactions, ¶577(f) (e.g., ¶¶3, 76-78); (3) denying fraud claims without 
adequate investigation or explanation, ¶577(i)-(k) (e.g., ¶¶3, 89-91); (4) rescinding 
prior “permanent” credits, ¶577(l) (e.g., ¶¶92, 207-208, 232, 240, 263-64, 269-71); 
(5) freezing accounts without a reasonable basis and then falsely telling cardholders 
EDD had ordered the freezes and they would need to speak to EDD to unfreeze 
their accounts, ¶577(m)-(n) (e.g., ¶¶3, 51-53, 91, 93-96, 100); (6) making it 
unreasonably difficult to submit fraud claims and seek help with frozen and blocked 
accounts, ¶577(h), (o) (e.g., ¶¶87-88, 90, 96-104, 117-26, 133, 141, 145-50, 179-
84, 198, 209-13, 221-23, 251); and (7) making numerous false and deceptive 
representations about the zero liability and level of customer service and security 
and fraud protection it would provide, ¶577(d), (i) (e.g., ¶¶42-44, 73, 81-86, 99). 
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substantially injurious to consumers.” Candelore, 19 Cal.App.5th at 1155. 
Unfairness “is an equitable concept” that requires weighing evidence, Schnall v. 
Hertz Corp., 78 Cal.App.4th 1144, 1167 (2000), and thus “is generally a question 
of fact and unsuited for dismissal at the pleading stage.” Zemola v. Carrington Tea 
Co., LLC, 2017 WL 4922974, at *5 (S.D. Cal. Oct. 30, 2017) (cleaned up); accord 
Brooks v. Bank of Am., N.A., 2021 WL 1541643, at *4 (S.D. Cal. Apr. 20, 2021).  
The Ninth Circuit uses a balancing test to determine if a practice is unfair, 
weighing the harm to the consumer against the utility of the practice. Lozano v. 
AT&T Wireless Servs., Inc., 504 F.3d 718, 735-36 (9th Cir. 2007). BofA’s practices 
fail this test because they caused substantial harm to Plaintiffs yet had little (if any) 
legitimate utility. ¶578 & MCC Ex. A; see, e.g., ¶91 (BofA’s scheme “sought to 
protect its own financial interests at the expense of legitimate claimants”); ¶108 
(fraud filter has “extremely high false positive rate”). See Brooks, 2021 WL 
1541643, at *4 (S.D. Cal. Apr. 20, 2021) (declining to dismiss claim based on 
balancing test); accord In re Solara, 2020 WL 2214152, at *11 (S.D. Cal. May 7, 
2020); In re Anthem, Inc. Data Breach Litig., 162 F.Supp.3d 953, 990 (N.D. Cal. 
2016). BofA’s arguments under the balancing test (Mot. at 35) impermissibly rely 
on disputed assertions outside the MCC. 
The Ninth Circuit also recognizes a tethering test, which requires the alleged 
unfairness be “tethered to some legislatively declared policy or proof of some actual 
or threatened impact on competition.” Lozano, 504 F.3d at 735-36. Plaintiffs satisfy 
this test because BofA’s practices violate the public policy of the laws supporting 
Plaintiffs’ unlawful prong claim and those underlying California’s EDD benefits 
programs. See, e.g., 15 U.S.C. §1693(b) (EFTA’s “purpose” is “establishing the 
rights, liabilities, and responsibilities of participants in electronic fund … transfer 
systems,” and its “primary objective … is the provision of individual consumer 
rights”); Cal. Dep’t of Human Res. Dev. v. Java, 402 U.S. 121, 131-32 (1971) 
(purpose of UI is to “maintain the recipient at subsistence levels” and to allow 
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recipients to focus on “[nothing] else but looking for a job”); AFL, 88 Cal.App.3d 
at 818 (achieving UI’s purposes requires “prompt payment of benefits”).  
BofA further argues that its account-freeze practices cannot be unfair because 
they are permitted by the Cardholder Agreement. Mot. at 35. As discussed above 
(at 15-16, 19), this argument rests on an erroneous interpretation of the Cardholder 
Agreement and the MCC. See also MCC Ex. A at 1 (finding “strong likelihood” 
that “BofA is systematically breaching its contracts with cardholders,” including by 
“freezing [] accounts based on a faulty screening process”). “[S]ystematically 
breaching a form contract affecting many consumers,” as BofA is alleged to have 
done, is actionable under the UCL. Smith v. State Farm Mut. Auto. Ins. Co., 93 
Cal.App.4th 700, 719 (2001).42 Also, while the UCL “does not give the courts a 
general license to review the fairness of contracts” (Mot. at 35) (quoting South Bay 
Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal.App.4th 861, 887 (1999)), it 
does impose liability where, as here, the challenged practice is “immoral, unethical, 
oppressive, unscrupulous or substantially injurious to consumers.” South Bay, 72 
Cal.App.4th at 886-88. Courts have permitted UCL claims to go forward even 
where a contract purported to authorize the challenged conduct. See De La Torre v. 
CashCall, Inc., 5 Cal.5th 966, 981 (2018); Moran v. Prime Healthcare Mgmt., Inc., 
3 Cal.App.5th 1131, 1149 (2016). Here, Plaintiffs allege with specificity that, 
among other unfair acts, BofA froze thousands of accounts without a reasonable 
basis and as part of a scheme to avoid its EFTA obligations, and then falsely told 
cardholders that EDD had ordered the freezes and that they would need to speak 
with EDD to unfreeze their accounts. This is sufficient to state a UCL unfair 
 
42 South Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal.App.4th 861 
(1999), is thus distinguishable as it involved a commercial transaction between 
sophisticated parties, affirming judgment after trial on the grounds that the UCL “is 
directed toward protecting the general public, not automotive dealerships” 
challenging a standard method of calculating loan interest that plaintiff “knew, 
understood, agreed, and expected” to be used when it agreed to the loan at issue. Id. 
at 870, 878 (emphasis added). 
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business practice claim at the pleading stage. 
 
B. Plaintiffs Adequately Plead Their Entitlement to Injunctive Relief 
and Restitution. 
The UCL authorizes injunctive relief and equitable restitution as two “wholly 
independent remedies.” Clayworth v. Pfizer, Inc., 49 Cal.4th 758, 790 (2010) (citing 
Cal. Bus. & Prof. Code §17203). Plaintiffs seek both. ¶584. BofA argues they are 
barred from requesting either (Mot. at 31-33), but those are merits arguments. 
BofA argues Plaintiffs are not entitled to equitable relief because they “have 
an adequate remedy at law.” Mot. at 32. First, that argument is premature. Edelson 
v. Travel Ins. Int’l, Inc., 2021 WL 4334075, at *6 (S.D. Cal. Sept. 23, 2021) (“no 
controlling authority prevents a plaintiff from asserting alternative legal remedies 
at the pleading stage”); Wildin v. FCA US LLC, 2018 WL 3032986, at *7 & n.4 
(S.D. Cal. June 19, 2018) (similar). Second, BofA ignores the obvious point that the 
request for injunctive relief seeks to prevent future harm and that the Yick court 
already granted a preliminary injunction in this case. See, e.g., Heredia v. Sunrise 
Senior Living LLC, 2021 WL 819159, at *7 (C.D. Cal. Feb. 10, 2021). BofA’s 
alleged continued implementation of its challenged business practices (see, e.g., 
¶111) shows that those practices are likely to continue absent injunctive relief.43 
Finally, BofA argues that there can be no restitution because it was not BofA 
but third-party criminals who stole Plaintiffs’ money. Mot. at 32-33. That argument 
is not supported by the law. The UCL authorizes restitution of any money in which 
plaintiffs have a “vested interest,” including any “quantifiable sums” “due and 
payable” under a statute that defendants “unlawfully withheld.” Cortez v. Purolator 
 
43 BofA’s cases are distinguishable. Sonner v. Premier Nutrition Corp., 971 F.3d 
834, 844 (9th Cir. 2020) (affirming dismissal where plaintiff strategically amended 
complaint “on the eve of trial” despite being warned by court not to do so); Huynh, 
508 F.Supp.3d at 662 (N.D. Cal. Dec. 21, 2020) (dismissing claim on summary 
judgment); Gibson v. Jaguar Land Rover N. Am., LLC, 2020 WL 5492990, at *3 
(C.D. Cal. Sept. 9, 2020) (only harm was “lost money or property”). 
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Air Filtration Prods. Co., 23 Cal.4th 163, 178 (2000) (order for payment of earned 
wages proper under UCL). The UCL authorizes, for example, restitution of the 
unauthorized transaction reimbursements (and interest thereon) that BofA 
unlawfully withheld from Plaintiffs in violation of EFTA. Additionally, in class 
actions, the UCL may authorize disgorgement of profits obtained by unfair practices 
to the extent those profits are monies in which plaintiffs have an ownership interest. 
Korea Supply Co. v. Lockheed Martin Corp., 29 Cal.4th 1134, 1148 (2003). This 
principle would apply, for example, to the interest that BofA has earned by 
unlawfully withholding funds and unlawfully freezing accounts. See ¶¶49, 51, 583. 
VIII. Plaintiffs State Claims for Violations of Due Process (Counts 13, 14) 
A. Plaintiffs Adequately Allege State Action. 
Plaintiffs also state a claim that BofA acted as a state actor when it froze their 
accounts and denied them EDD benefits based on its automated Claim Fraud Filter 
that incorrectly flagged Plaintiffs as suspected criminals, both because (1) BofA 
was performing a “traditionally and exclusively governmental” function and (2) 
BofA and EDD were engaged in joint action. ¶¶654-59; see Rawson v. Recovery 
Innovations, Inc., 975 F.3d 742, 748 (9th Cir. 2020); Cahoo v. SAS Inst. Inc., 322 
F.Supp.3d 772, 793 (E.D. Mich. 2018), aff’d in part, rev’d in part on other grounds, 
912 F.3d 887 (6th Cir. 2019) (UI claimants, who were subjected to false fraud 
determinations by state’s automated fraud detection system, adequately alleged 
state action with respect to state contractors that administered the system). 
In urging this Court to hold as a matter of law that it is not a state actor, BofA 
attempts to characterize its “servicing of [Plaintiffs’] debit card accounts” as 
“a classic function of a private bank.” Mot. at 37-38. But BofA is not acting in a 
role akin to a private bank here; rather, it has contracted with EDD to play a central 
role in the “administration of unemployment benefits[,] … a power traditionally 
exclusively reserved to the state.” Cahoo, 322 F.Supp.3d at 793; see ¶¶46-48. Not 
only has EDD “delegated to [BofA] the public functions of distributing EDD 
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benefits to Cardholders” (¶48) through BofA-issued debit cards and accounts, but 
the EDD has specifically “authorize[d] and obligate[d] [BofA] to work jointly with 
EDD to combat EDD benefits enrollment fraud,” including by freezing certain 
accounts at EDD’s direction when EDD itself discovers enrollment fraud. ¶¶50-51, 
629, 631. Just as the State’s ability to terminate UI benefits is constrained by the 
constitutional requirements of due process, see AFL, 88 Cal.App.3d at 820 & n.5, 
so is BofA’s under these circumstances. See Rawson, 975 F.3d at 753 (“[P]rivate 
parties may act under color of state law when they perform actions under which the 
state owes constitutional obligations to those affected”; government cannot 
“contract away its constitutional duties by having private actors rather than state 
actors perform some of the work”) (cleaned up); West v. Atkins, 487 U.S. 42, 56 
(1988) (private physician providing medical treatment to prisoners was state actor 
because “the State bore an affirmative obligation to provide adequate medical care” 
to prisoners, “the State delegated that function” to the physician, and the physician 
“voluntarily assumed that obligation by contract”).  
In Brown v. Stored Value Cards, Inc., 2016 WL 4491836 (D. Or. Aug. 25, 
2016), rev’d on other grounds, 953 F.3d 567, 575 (9th Cir. 2020), a government 
contractor that had been delegated the function of returning released inmates’ 
money through prepaid debit cards sought to characterize its role as merely 
providing “a debit card service” or “charging fees for debit cards.” Id., at *2. The 
court rejected this argument, explaining that “[t]he relationship of [plaintiff] and the 
Defendants is one that could only come through the exercise of the state’s power.” 
Id. Likewise here, the relationship between Plaintiffs and BofA exists solely by 
virtue of BofA’s exclusive contract with EDD and Plaintiffs’ entitlement to EDD 
benefits. ¶¶39, 47-48; see also ¶48 (describing unique nature of EDD Debit Card 
accounts as holding only EDD-deposited funds). As in Brown, where the bank-
issued debit card was the only state-provided option for the plaintiff to retrieve her 
funds, Plaintiffs allege that BofA has the “exclusive contract” to deliver Plaintiffs’ 
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EDD benefits through prepaid debit cards, that these cards are the “default means” 
for distributing these public benefits, and that EDD presents these cards as the 
“exclusive means of receiving such benefits.” ¶¶39, 47.44 BofA’s role in the 
administration of EDD benefits bears no resemblance to a private bank that happens 
to allow public employees to deposit their paychecks (Mot. at 37-38) but has not 
been granted an exclusive role or authority by the State to freeze access to those 
funds as a component of the State’s own anti-fraud measures.45  
BofA also denies that it is a “joint actor” with the state, and points to 
allegations that EDD did not endorse the specific account freezes at issue here. Mot. 
at 36. But Plaintiffs allege an ongoing and jointly undertaken process by EDD and 
BofA to detect suspected enrollment fraud, freeze accounts, and require re-
verification as a condition of regaining access to benefits. See ¶¶50, 52 (alleging a 
“joint fraud-prevention undertaking with EDD” and that after freezing accounts 
BofA required class members to re-verify eligibility with EDD). Even if EDD did 
not specifically instruct BofA to freeze the particular accounts at issue, EDD 
“facilitate[d]” the freezes by (1) encouraging BofA generally to “work jointly with 
 
44 BofA argues that some class members were able to receive benefits by paper 
checks, but the MCC alleges that class members are informed by EDD that debit 
cards are the only option. That a few cardholders who through extraordinary efforts 
were able to request paper checks after BofA had illegally frozen their accounts 
does not undermine the exclusive role BofA plays in administering EDD benefits 
programs. See, e.g., ¶¶172-74 (account frozen in December 2020 and deprived of 
benefits until paper checks received in February 2021); ¶¶221-23 (same).  
45 BofA’s cases (Mot. at 37) are distinguishable. See Am. Mfrs. Mut. Ins. Co. v. 
Sullivan, 526 U.S. 40, 52 (1999) (private insurers not state actors simply because 
they are heavily regulated); Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 
F.3d 244, 248 (1st Cir. 2012) (operating HMO not a public function); Hester v. 
Regions Bank, 2010 WL 2232158, at *5 (M.D. Ala. June 3, 2010) (concerning only 
the freezing of purely private bank accounts); Venegas v. Bianco, 2019 WL 
10301094, at *9 (C.D. Cal. Aug. 26, 2019) (holding that, “[a]s alleged,” complaint 
did not sufficiently state that a prison commissary employee’s actions were fairly 
attributable to the state); Belue v. Keefe Commissary Grp., LLC, 2021 WL 1197749, 
at *3 (D. Idaho Mar. 29, 2021) (relying on Venegas without further analysis). 
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EDD to combat EDD benefits enrollment fraud,” including by authorizing BofA to 
freeze accounts at EDD’s direction (which authority BofA then abused by 
unilaterally freezing accounts based on its own objectively unreasonable suspicion 
of enrollment fraud) (¶¶50-51, 629, 631), and (2) requiring beneficiaries frozen by 
BofA to first re-verify their identity (as BofA instructed) before issuing them 
replacement benefits by paper check (see ¶¶52, 95, 221-23). See Naoko Ohno v. 
Yuko Yasuma, 723 F.3d 984, 996 (9th Cir. 2013); see, e.g., Tsao v. Desert Palace, 
Inc., 698 F.3d 1128, 1140-41 (9th Cir. 2012) (private casino security guard’s 
decision to make citizen’s arrest was “part and parcel of the overall trespass 
enforcement program established by [casino] and [police department] jointly,” and 
thus state action); Swift v. Lewis, 901 F.2d 730, 732 n.2 (9th Cir. 1990) (private 
individual contracted to help state determine whether certain prisoners should be 
classified as Sikhs was state actor), superseded by statute on other grounds; Geneva 
Tower Tenants Org. v. Federated Mortg. Invs., 504 F.2d 483, 487-88 (9th Cir. 1974) 
(private landlords’ receipt of federal subsidies and agreement to abide by those 
subsidies’ rules rendered them participants in joint undertaking); Cahoo, 322 
F.Supp.3d at 793-94 (private entities authorized under state contracts to design and 
manage fraud detection software system were state actors).46 
Finally, in arguing that the EDD-BofA revenue-sharing agreement (see ¶49) 
 
46 The EDD-BofA relationship is a far cry from the arm’s-length contracting 
relationship at issue in BofA’s cases. See Pasadena Republican Club v. W. Justice 
Ctr., 985 F.3d 1161, 1165, 1169-71 (9th Cir. 2021) (under private actor’s lease 
agreement, government lessor received no revenue and had “no input or control” 
over or knowledge of the acts at issue of renting out meeting rooms); Brunette v. 
Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1212 (9th Cir. 2002) (plaintiff 
failed to allege “any substantial cooperation or inextricably intertwined activity” 
between government actor that conducted an animal welfare raid and media invited 
to observe, and government “did nothing to facilitate” media’s actions); Black by 
Black v. Indiana Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (“no 
symbiotic relationship” between the state and its school bus contractor and “no state 
regulation that ‘compelled or even influenced’” the contractor’s alleged conduct). 
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is irrelevant to the joint action inquiry (Mot. at 39), BofA completely ignores the 
leading authority on the issue: Burton v. Wilmington Parking Auth., 365 U.S. 715, 
724-25 (1961). The direct revenue-sharing authorized in the EDD-BofA Contract 
is a far more direct financial relationship than the “incidental variety of mutual 
benefits” present in Burton.47 BofA mistakenly contends that Pasadena Republican 
Club requires a showing of complete state dependence on the private entity. To the 
contrary, that decision involved an arm’s-length commercial lease arrangement 
where the public entity’s revenue bore no relationship to the private entity’s. See 
985 F.3d at 1170. Here, Plaintiffs allege EDD directly benefits financially from 
BofA’s earnings (and, in fact, that EDD and BofA jointly profit from decisions to 
freeze accounts). See ¶49. At a minimum, the twin grounds for establishing state 
action in this case cannot be adjudicated without further factual development. 
B. Plaintiffs Adequately Allege Due Process Violations. 
BofA does not seriously dispute that Plaintiffs’ factual allegations make a 
strong showing of all three Mathews v. Eldridge factors: the property interest at 
stake, the risk of erroneous deprivation, and the value of additional safeguards. 424 
U.S. 319, 335 (1976). Nor could it, given Plaintiffs’ allegations (1) that they depend 
on their EDD benefits for life’s basic necessities like food and shelter, (2) that BofA 
froze the accounts of eligible beneficiaries in response to their reports of being 
victims of unauthorized transactions, based exclusively on its highly unreliable 
Claim Fraud Filter that erroneously flagged tens of thousands of cardholders as 
“criminals,” without BofA ever conducting follow-up investigations or testing the 
accuracy of its filter, (3) that these freezes lasted for months on end, without any 
pre-deprivation (or even prompt post-deprivation) notice or opportunity to contest 
 
47 The Supreme Court reasoned that the privately owned restaurant benefited 
from customer access to the public parking facility, while the parking facility 
benefited from parking demand created by the restaurant. Id. at 724; see also id. at 
719-20 (project’s finances depended on long-term leases to multiple private tenants 
including bookstore, food store, jeweler, and restaurant). 
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the basis for the freezes, and (4) that had BofA afforded claimants an opportunity 
to be heard and to verify their identities, BofA could have avoided erroneously 
depriving them of their subsistence public benefits. See ¶¶93-95, 108, 111-12, 651-
66; see also AFL, 88 Cal.App.3d at 820 & n.5 (1979) (UI benefits are due process-
protected property interest requiring pre-deprivation notice and hearing); Goldberg 
v. Kelly, 397 U.S. 254, 262, 267-68 (1970).48 
BofA asserts that its interest in preventing fraud justifies its practice of 
freezing cardholders’ accounts without prior notice. Mot. at 39-40. Even if BofA’s 
freezes bore some relationship to legitimate concerns about fraud,49 the authority 
BofA cites only allows post-termination procedures to substitute for pre-
termination procedures “‘in limited cases’” where there is “‘substantial assurance 
that the deprivation is not baseless or unwarranted.’” Mot. at 40 (quoting Fed. 
Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240 (1988)). That limited exception 
does not apply here, where Plaintiffs set forth specific factual allegations that 
BofA’s decisions to freeze their accounts were based exclusively on an automated 
and unreliable Claim Fraud Filter without any investigation, resulting in tens of 
thousands of erroneous deprivations. ¶¶93-96, 108.50 Nor does the mere possibility 
that some actual criminals might benefit from pre-deprivation notice negate 
legitimate EDD beneficiaries’ constitutional right to due process. See AFL, 88 
 
48 See also, e.g., ¶¶130-135, 138-43, 145-51, 163-70, 173-75, 188-91, 195-99, 
217-24, 226-28, 246-49, 250-53, 258-60, 269-73.  
49 BofA’s assertion that its freeze practices are necessary to protect against 
criminal activities (i.e., UI enrollment fraud) is belied by the fact it kept accounts 
frozen long after the EDD confirmed entitlement to benefits in the account. See ¶96.  
50 In contrast, Mallen upheld post-suspension procedures for an indicted bank 
official suspended from bank affairs because the grand jury’s findings provided 
reasonable assurance that the suspension “was not baseless.” 486 U.S. at 241. 
Similarly, Spiegel v. Ryan, 946 F.2d 1435 (9th Cir. 1991), upheld a post-deprivation 
hearing procedure because regulations required the agency to “meet specific 
statutory requirements before issuing the [relevant] order,” and the “decision was 
supported by detailed findings … following a long investigation ....” Id. at 1440. 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
Case No. 3:21-md-02992-LAB-MSB 
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Cal.App.3d at 821 (“The potential abuse by some of the procedures designed to 
protect all claimants cannot be the basis for deciding whether the procedures are 
required by due process.”); Goldberg, 397 U.S. at 266 (pre-termination hearing 
required even though “benefits paid to ineligible recipients pending decision at the 
hearing probably cannot be recouped”). In any event, Plaintiffs have also alleged 
that BofA failed to provide even reasonable post-deprivation notice or opportunity 
to be heard, and that BofA continued to deny access to accounts even after 
cardholders re-verified their entitlement to benefits. ¶¶95-96. Under any standard, 
then, Plaintiffs have adequately alleged claims for violations of due process. 
CONCLUSION 
For the foregoing reasons, Plaintiffs respectfully request that BofA’s motion 
to dismiss be denied. If any part of the motion is granted, Plaintiffs respectfully 
request leave to amend, as there has been no bad faith or undue delay, amendment 
would not be futile, and BofA would suffer no prejudice. See Desertrain v. City of 
Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014). 
 
 
 
 
 
Respectfully submitted, 
Dated: November 15, 2021 
COTCHETT, PITRE & McCARTHY, LLP 
 
By:  /s/ Brian Danitz 
 
 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
ANDREW F. KIRTLEY 
KAIYI A. XIE 
 
Dated: November 15, 2021 
ALTSHULER BERZON LLP 
 
 
By:  /s/ Michael Rubin  
 
 
 
 
 
  
 
 
MICHAEL RUBIN  
STACEY M. LEYTON  
MATTHEW MURRAY  
CONNIE K. CHAN 
CHRISTINE M. SALAZAR 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class 
 
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DAVID S. CASEY, JR. (SBN 060768) 
dcasey@cglaw.com 
GAYLE M. BLATT (SBN 122048) 
gmb@cglaw.com 
JEREMY ROBINSON (SBN 188325) 
jrobinson@cglaw.com 
P. CAMILLE GUERRA (SBN 326546)
camille@cglaw.com 
CATHERINE McBAIN (SBN 303911) 
kmcbain@cglaw.com 
CASEY GERRY SCHENK 
FRANCAVILLA BLATT & 
PENFIELD, LLP 
110 Laurel Street 
San Diego, CA 92101 
Telephone: (619) 238-1811 
Fax: (619) 544-9232 
 
Liaison Counsel for Class Plaintiffs 
JOSHUA B. SWIGART (SBN 225557) 
josh@swigartlawgroup.com 
JULIANA G. BLAHA (SBN 331066) 
juliana@swigartlawgroup.com 
SWIGART LAW GROUP, APC 
2221 Camino Del Rio South. Suite 308 
San Diego, CA 92108 
Telephone: (866) 219-3343 
Fax: (866) 219-8344 
DANIEL G. SHAY (SBN 250548) 
danielshay@tcpafdcpa.com 
LAW OFFICE OF DANIEL G. SHAY
2221 Camino Del Rio South, Suite 308 
San Diego, CA 92108 
Telephone: (619) 222-7429 
Fax: (866) 431-3292 
Liaison Counsel for Individual Plaintiffs 
DANIEL L. WARSHAW (SBN 185365)
dwarshaw@pswlaw.com 
BOBBY POUYA (SBN 245527) 
bpouya@pswlaw.com 
PEARSON, SIMON & WARSHAW, LLP
15165 Ventura Boulevard, Suite 400 
Sherman Oaks, CA 91403 
Telephone: (818) 788-8300 
Fax: (818) 788-8104 
RAYMOND P. BOUCHER (SBN 115364)
ray@boucher.la 
BOUCHER LLP 
21600 Oxnard Street, Suite 600 
Woodland Hills, CA 91367 
Telephone: (818) 340-5400 
Fax: (818) 340-5401 
Attorneys for Plaintiffs Jonathan Smith, 
Alex Yuan, and the Proposed Class
 
 
FRANCIS A. BOTTINI, JR. (SBN 175783)
fbottini@bottinilaw.com 
ANNE B. BESTE (SBN 326881) 
abeste@bottinilaw.com 
ALBERT Y. CHANG (SBN 296065) 
achang@bottinilaw.com 
YURY A. KOLESNIKOV (SBN 271173)
ykolesnikov@bottinilaw.com 
BOTTINI & BOTTINI, INC. 
7817 Ivanhoe Avenue, Suite 102 
La Jolla, CA 92037 
Telephone: (858) 914-2001 
Fax: (858) 914-2002 
 
Attorneys for Plaintiff Lindsay McClure 
and the Proposed Class 
 
 
 
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THOMAS E. FRAYSSE (SBN 104436)
tef@knoxricksen.com 
MAISIE C. SOKOLOVE (SBN 239665)
mcs@knoxricksen.com 
AMANDA M. PLOWMAN (SBN 317462)
amp@knoxricksen.com 
KNOX RICKSEN LLP 
2033 N. Main Street, Suite 340 
Walnut Creek, CA 94596 
Telephone: (925) 433-2500 
Fax: (925) 433-2505 
Attorneys for Plaintiff Robert L. Wilson 
and the Proposed Class 
MARY E. ALEXANDER (SBN 104173)
malexander@maryalexanderlaw.com 
BRENDAN D.S. WAY (SBN 261705) 
bway@maryalexanderlaw.com 
ARIN R. SCAPA (SBN 283400) 
ascapa@maryalexanderlaw.com 
CATALINA S. MUÑOZ (SBN 317856)
cmunoz@maryalexanderlaw.com 
MARY ALEXANDER & 
ASSOCIATES, P.C. 
44 Montgomery Street, Suite 1303 
San Francisco, CA 94104 
Telephone: (415) 433-4440 
Fax: (415) 433-5440 
 
Attorneys for Plaintiff Clara Cajas  
and the Proposed Class 
 
ADAM MCNEILE (SBN 280296) 
adam@kbklegal.com 
KRISTIN KEMNITZER (SBN 278946)
kristin@kbklegal.com 
KEMNITZER, BARRON & KRIEG, LLP
42 Miller Avenue, 3rd Floor 
Mill Valley, CA 94941 
Telephone: (415) 632-1900 
Fax: (415) 632-1901 
 
Attorneys for Plaintiffs Roland 
Oosthuizen, Rosemary Mathews, and the
Proposed Class 
 
 
 
CHRISTOPHER J. HAMNER (SBN 197117)
chamner@hamnerlaw.com 
EVELINA M. SERAFINI (SBN 187137)
eserafini@hamnerlaw.com 
HAMNER LAW OFFICES, APLC 
26565 West Agoura Road, Suite 200 
Calabasas, CA 91302 
Telephone: (888) 416-6654 
 
Attorneys for Plaintiffs Jory Zoelle, 
Cindy Baker, Ursula Auburn, and the 
Proposed Class 
 
 
 
 
 
 
 
 
 
 
 
 
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Plaintiffs’ Opposition to Motion to Dismiss Master Consolidated Complaint  
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JAMES V. NOLAN (SBN 84239) 
jvnolan@yololaw.com 
ROBERT P. NAKKEN (SBN 77550) 
rnakken@yololaw.com 
DAVID W. JANES (SBN 71334) 
dwjanes@yololaw.com 
GARDNER, JANES, NAKKEN, 
HUGO & NOLAN LAWYERS 
429 First Street 
Woodland, CA 95695 
Telephone: (530) 662-7367 
Fax: (530) 666-9116 
Attorneys for Plaintiff Brian Wiggins 
and the Proposed Class 
 
 
 
 
THOMAS MARTIN III (SBN 218456) 
tom@mblawapc.com 
NICHOLAS J. BONTRAGER (SBN 252114)
nick@mblawapc.com 
MARTIN & BONTRAGER, APC 
4605 Lankershim Blvd., Suite 535 
Toluca Lake, CA 91602 
Telephone: (323) 940-1700 
Fax: (323) 328-8095 
 
Attorneys for Plaintiff Steven Hart 
BENJAMIN GUBERNICK (SBN 321883)
ben@gubernicklaw.com 
GUBERNICK LAW, P.L.L.C. 
10720 W. Indian School Rd., Suite 19 
Phoenix, AZ 85037 
Telephone: (734) 678-5169 
 
DAVID N. LAKE (SBN 180775) 
david@lakelawpc.com 
LAW OFFICES OF DAVID N. LAKE
16130 Ventura Boulevard, Suite 650 
Encino, CA 91436 
Telephone: (818) 788-5100 
Fax: (818) 479-9990 
 
Attorneys for Plaintiffs Julie Hicks, 
Kuang Ting Chong, Stephanie Moore, 
and the Proposed Class 
 
 
ANDRE L. VERDUN (SBN 365436) 
Andre@VerdunLaw.com 
LAW OFFICES OF ANDRE L. VERDUN
1777 N. Ventura Avenue 
Ventura, CA 93001 
Telephone: (619) 880-0110 
Fax: (866) 786-6993 
 
Attorneys for Plaintiffs Rosa Alvarez, 
Elana Martina Rojas de Charolet, and 
Jessie Verdun 
 
 
 
 
 
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SIGNATURE CERTIFICATION 
Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative 
Policies and Procedures Manual, I, Brian Danitz, hereby certify that the content of 
this document is acceptable to all the signatories herein and that I have obtained 
counsel’s authorization to affix their electronic signatures to this document. 
 
 
 
 
 
 
 
 
/s/ Brian Danitz 
 
 
 
 
 
 
 
 
 
BRIAN DANITZ 
 
 
 
 
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  1. Joint Motion to Modify Preliminary Injunction Order by Bank of America, N.A. — In re BofA Unemployment Litigation (Dkt. 102)same case · 2022-06-14
  2. Notice of MDL Conditional Transfer Order CTO-6, re MDL No. 2992 — In re BofA Unemployment Litigation (Dkt. 100)same case · 2022-06-10
  3. Bank of America - Southern District of CA SD Div - Y. Chan Notice of Address Changesame docket · 2022-03-09
  4. Reply Memorandum Of Points Andsame docket · 2022-01-31
  5. 1. Reply Memorandum of Pointssame docket · 2022-01-31
  6. Motion to Dismiss for Lack of Jurisdiction, Motion to Dismiss for Failure — In re BofA Unemployment Litigation (Dkt. 84)same case · 2022-01-10
  7. Exhibit A to the Declaration of Brian Danitz — Bofa Ca Unemployment (Dkt. 90.5)same docket · 2021-11-15
  8. Exhibit B to the Declaration of Brian Danitz — Bofa Ca Unemployment (Dkt. 90.6)same docket · 2021-11-15
  9. Notice - Kyc Company Litigation (2021-11-15)same docket · 2021-11-15
  10. Order Granting Joint Motion Re: Extension of Page Limits on Motion — In re BofA Unemployment Litigation (Dkt. 87)same docket · 2021-11-08
  11. Joint Motion re Page Limits on Motion to Dismiss — In re BofA Unemployment Litigationsame docket · 2021-11-05
  12. [Proposed] Order Granting Joint Motion Re:… — Bofa Ca Unemployment (Dkt. 86.1)same docket · 2021-11-05
  13. Order Re: Related Actions — In re Bank of America California Unemployment Benefits Litigation (Dkt. 85, S.D. Cal. No. 3:21-md-02992)same docket · 2021-10-13
  14. Declaration of Shane Daniels in Support of Defendant Bank of America — In re BofA Unemployment Litigation (Dkt. 84-8)same docket · 2021-10-01
  15. Exhibit 3 to the Chestnut Declaration — Bofa Ca Unemployment (Dkt. 84.7)same case · 2021-10-01
  16. Exhibit 2 to the Chestnut Declaration — Bofa Ca Unemployment (Dkt. 84.6)same case · 2021-10-01
  17. Exhibit 1 to the Chestnut Declaration — Bofa Ca Unemployment (Dkt. 84.5)same case · 2021-10-01
  18. Request for Judicial Notice in Support of Motion to Dismiss — In re BofA Unemployment Litigation (Dkt. 84-2)same case · 2021-10-01
  19. Memo of Points and Authorities in Support of Defendant Bank of America — In re BofA Unemployment Litigation (Dkt. 84-1)same case · 2021-10-01
  20. Notice of Plaintiffs' Request to Appear In Person by Jennifer Meza — In re BofA Unemployment Litigation (Dkt. 77)same docket · 2021-09-29

Part of: In re: Bank of America California Unemployment Benefits Litigation — S.D. Cal., No. 21-md-02992 · U.S. District Court for the Southern District of California · Pandemic unemployment insurance · Lender and platform litigation · Motions · 2021 · Court filings

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