Joint Motion to Modify Preliminary Injunction Order by Bank of America, N.A. — In re BofA Unemployment Litigation (Dkt. 102)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 102 · 2022-06-14 · Docket on CourtListener

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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
 
CASE NO. 21-MD-02992-LAB-MSB 
 
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JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue  
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231  
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA - 
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-MD-02992-LAB-MSB 
JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
Ctrm: 
14A - 14th Floor 
Judge: 
Hon. Larry Alan Burns 
 
No oral argument pursuant to Civil 
Local Rule 7.2. 
 
Filed/Lodged Concurrently with: 
1. Proposed Order 
 
 
 
 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Pursuant to Civil Local Rule 7.2, Plaintiffs in the multi-district litigation 
captioned In re: Bank of America California Unemployment Benefits Litigation, 
Case No. 3:21-MD-02992 (“Plaintiffs”) and Defendant Bank of America, N.A. 
(“Defendant” and, together with Plaintiffs, the “Parties”), through their undersigned 
counsel, stipulate and jointly move this Court for an order modifying one provision 
of the Preliminary Injunction Order (Ex. A, the “PI Order”) entered June 2, 2021 in 
Yick v. Bank of America, N.A., Case No. 3:21-cv-00376-VC (N.D. Cal.), which 
encompassed 9 consolidated cases that are now member cases in the multidistrict 
litigation captioned In re: Bank of America California Unemployment Benefits 
Litigation, MDL No. 2992. The parties have met and conferred about the proposed 
modification. While Plaintiffs continue to recognize that the PI Order has ongoing 
importance in protecting the rights of cardholders, they do not oppose Defendant’s 
request for this limited modification as set forth herein and in the accompanying 
proposed order. 
BACKGROUND 
On April 1, 2021, plaintiffs in the class action litigation captioned Yick v. Bank 
of America, N.A., Case No. 3:21-cv-00376-VC (N.D. Cal.) (the “Yick Plaintiffs”) 
filed a Motion for Preliminary Injunction and Provisional Class Certification.  See 
Case No. 3:21-cv-00376-VC (N.D. Cal.), ECF No. 64.   
On May 17, 2021, the Yick court entered an order finding that “plaintiffs have 
demonstrated a strong likelihood of success” on their Electronic Funds Transfer Act 
(“EFTA”) and breach of contract claims, that “[t]he harm being suffered by the class 
members is irreparable,” and that “[t]he balance of hardships and the public interest 
almost certainly support some form of preliminary injunctive relief.” Id. at ECF No. 
89. The order required Defendant and the Yick Plaintiffs to participate in a settlement 
conference with a magistrate judge to “carefully review and discuss” the specific 
terms of Plaintiffs’ proposed preliminary injunction to “ensure that it does not 
interfere with [Defendant’s] operations more than is necessary to sufficiently 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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minimize the risk of innocent cardholders being improperly deprived of their 
benefits.”  Id. at ECF No. 89. 
After an extensive meet-and-confer process, Defendant and the Yick Plaintiffs 
jointly submitted a proposed preliminary injunction order on May 28, 2021.  Id. at 
ECF No. 100.  The Yick court approved the proposed order and entered the PI Order 
on June 2, 2021, finding that “[t]he hardship to the defendant from this injunction is 
outweighed by its benefits to the class members” and that the injunction was in the 
public interest.  Id. at ECF No. 103; see also Ex. A. 
On June 4, 2021, the United States Judicial Panel on Multidistrict Litigation 
consolidated the Yick litigation and several other related cases into a multidistrict 
litigation captioned In re: Bank of America California Unemployment Benefits 
Litigation, MDL No. 2992, transferred the consolidated cases to the Southern 
District of California, and assigned the multidistrict litigation to Judge Burns for 
consolidated pretrial proceedings.  
RELIEF REQUESTED 
Paragraph 7 of the PI Order, entered June 2, 2021 pursuant to the stipulation 
of all parties to the consolidated Yick litigation, requires Defendant to give written 
notice “by mail, within three (3) business days, and email, if available, within one 
(1) business day” to class members whose accounts are blocked solely based upon 
Defendant’s Claims Fraud Filter.  Ex. A, ¶ 7.  The written notice must explain to the 
recipient that Defendant will promptly unblock their account if the recipient 
authenticates his or her identity with Defendant.  Id. 
Defendant has informed Plaintiffs that it requires additional time to send the 
notices due to various operational and technological reasons, including the timing of 
when certain information is received from a vendor that, according to Defendant, 
prevent Defendant from meeting the original deadlines.  Defendant and Plaintiffs 
have conferred about this issue and Defendant has provided Plaintiffs with 
information relating to the mailing of the Paragraph 7 notices, including a sworn 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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declaration.  The Parties have agreed to the following changes to the first sentence 
of Paragraph 7 of the PI Order (language to be deleted is denoted with a 
strikethrough, and new language is denoted in bold): 
Within 10 days of the entry of this Order (by mail and email, if available) or 
after the date of the blocking (by mail, within three (3) four (4) business days, 
and email, if available, within one (1) two (2) business days), whichever is 
later, Defendant shall give written notice to class members whose accounts 
are blocked solely based upon its Claims Fraud Filter that explains that the 
Bank will promptly unblock their account if the class member authenticates 
their identity, unless there are technology issues or delays in receiving data 
regarding blocked accounts that prevent Defendant from meeting those 
deadlines, in which case Defendant will give written notice by mail within 
five (5) business days and email, if available, within three (3) business 
days after the date of the blocking. 
 
The proposed revised language for the first sentence of Paragraph 7 is 
reflected in the Proposed Order submitted herewith.  
CONCLUSION 
For the reasons stated above, the Parties respectfully request that the Court 
enter the Proposed Order approving the modifications set forth herein. 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Dated: 
June 14, 2022 
 
Respectfully submitted, 
By:    s/ James W. McGarry__________ 
JAMES W. MCGARRY (pro hac 
vice) 
Attorney for Defendant 
JMcGarry@goodwinlaw.com  
GOODWIN PROCTER LLP 
100 Northern Avenue Boston, MA 
02210 
Tel.: +1 617 570 1000  
Fax: +1 617 523 1231  
LAURA A. STOLL (SBN 255023) 
Lstoll@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 South Figueroa Street,  
41st Floor Los Angeles, California 
90017 
Tel.: +1 213 426 2500  
Fax: +1 213 623 1673  
 
THOMAS M. HEFFERON (pro hac 
vice) 
Thefferon@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW 
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444  
YVONNE W. CHAN (pro hac vice) 
Ychan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA 02110  
Tel: +1 617 449 6914  
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
ARLENE R. YANG (SBN 297450) 
ayang@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650  
San Diego, CA 92101  
BARRY W. LEE (SBN 088685) 
bwlee@manatt.com 
MANATT PHELPS & PHILLIPS 
LLP 
One Embarcadero Center, 30th Floor 
San Francisco, CA 94111  
Tel.: +1 415 291 7450  
Fax: +1 415 291 7474  
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
By:    s/ Connie K. Chan ____________ 
        CONNIE K. CHAN (SBN 284230) 
        Attorney for Plaintiff 
        cchan@altber.com 
        ALTSHULER BERZON LLP 
        177 Post Street, Suite 300 
        San Francisco, CA 94108 
        Telephone: (415) 421-7151 
        Fax: (415) 362-8064 
 
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 
KEVIN J. BOUTIN (SBN 334965) 
kboutin@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 
 
        Interim Co-Lead Counsel for  
        Plaintiffs and the Proposed Class 
 
 
 
 
 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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ATTESTATION OF E-FILED SIGNATURE 
 
Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative 
Policies and Procedures Manual, I, James W. McGarry, 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/ James W. McGarry 
 
 
 
 
 
 
 
 
 
James W. McGarry 
 
 
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JOINT MOTION TO MODIFY 
PRELIMINARY INJUNCTION 
ORDER 
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CASE NO. 21-MD-02992-LAB-MSB 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on June 14, 2022.  I further certify that all participants in 
the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system.  I certify under penalty of perjury that the foregoing is true and 
correct. 
Executed:  June 14, 2022 
 
s/ James W. McGarry 
 
 
 
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