Response in Opposition re 146 Motion to Dismiss — In re Bank of America California Unemployment Benefits Litigation (Dkt. 171, S.D. Cal. No. 3:21-md-02992)

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Joshua B. Swigart (SBN 225557) 
 
 
Josh@SwigartLawGroup.com  
 
 
SWIGART LAW GROUP, APC 
 
 
 
2221 Camino del Rio S, Ste 308 
 
 
San Diego, CA  92108 
 
 
 
 
P: 866-219-3343 
F: 866-219-8344 
Interim Co-Liaison Counsel and  
Attorneys for Individual Plaintiffs 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Case No: 3:21-md-02992-LAB-MSB 
 
. PLAINTIFFS’ OPPOSITION 
TO BANK OF AMERICA, 
N.A.’S PARTIAL MOTION 
TO DISMISS THE FIRST 
AMENDED MASTER 
CONSOLIDATED 
COMPLAINT PURSUANT 
TO FED. R. CIV. P. 12(b)(6) 
 
Date: Oct. 2, 2023 
Time: 11:30 a.m. PST 
Ctrm: 14A – 14th Floor 
Judge: Hon. Larry A. Burns 
IN RE BANK OF AMERICA 
CALIFORNIA 
UNEMPLOYMENT BENEFITS 
LITIGATION 
 
 
 
This Document Relates to All 
Actions 
 
 

 
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In its Order dated May 25, 2023 (“Order”) this Court granted in part and denied 
in part Defendant Bank of America, N.A.’s (“BofA” or the “Bank”) Motion to Dismiss 
Master Consolidated Complaint (“MCC”), and provided Plaintiffs an opportunity to 
amend with respect to some of their claims.  (Dkt. No. 126).  Plaintiffs filed the First 
Amended Master Consolidated Complaint (“FAMCC”) on June 13, 2023.  Dkt. No. 
136.  
BofA has now filed a short partial Motion to Dismiss (“Motion”) targeted at the 
allegations of certain Individual Plaintiffs.  (See Colum D of Appendix A filed with 
BofA’s renewed motion to dismiss).  The Court should reject BofA’s argument that 
each Plaintiff that requested information from BofA regarding the Bank’s failure to 
make electronic fund transfers from their account due to BofA’s freezing of their 
accounts fails to state a claim under the Electronic Fund Transfer Act (“EFTA”).  
BofA’s position conflicts with this Court’s analysis in its Order as well as with the 
statutory language on which that analysis was based.    
I. 
BOFA DOES NOT SEEK TO DISMISS MOST OF THE INDIVIDUAL 
PLAINTIFFS’ AMENDED CLAIMS  
 
As a preliminary matter, BofA does not challenge the legal sufficiency of the 
amended allegations relating to the EFTA claims asserted by Individual Plaintiffs who 
reported and sought additional information regarding unauthorized transactions.  These 
include curative amendments by 19 Individual Plaintiffs, whose EFTA claims had 
previously been dismissed for failure to allege timely notice to the Bank,1 and by 63 
Individual Plaintiffs, whose EFTA claims had previously been dismissed for failure to 
 
1 See FAMCC ¶¶ 302 (C. Ayala), 312 (J. Brooks), 325 (R. Chase), 387 (I. Harris), 394 (R. 
Hernandez), 399 (T. Howze), 407 (R. Jaurigue, Jr.), 422 (E. Loredo), 435 (T. Middleton), 467 (M. 
Raiff), 470 (N. Rima-Fleurima), 473 (M. Roa), 474 (C. Robinson), 483 (F. Saldate), 485 (T. 
Schmitz), 488 (J. Silva), 491 (D. Smith), 505 (T. Turner), 526 (C. Zettlemoyer).  
 

 
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allege reporting a qualifying error.2  These claims and allegations are not at issue in this 
Motion. 
BofA only challenges the EFTA claims asserted by Individual Plaintiffs who 
requested additional information as to the basis for the failure to make transfers as a 
result of BofA’s freezing or restriction of their accounts (whom BofA refers to as the 
“Freeze Only” Individual Plaintiffs). However, these claims are adequately pled. 
II. 
THE “FREEZE ONLY” INDIVIDUAL PLAINTIFFS’ AMENDED 
ALLEGATIONS ARE SUFFICIENT TO STATE AN EFTA CLAIM  
 
BofA contends that the Individual Plaintiffs who allege that they requested 
additional information in connection with an account freeze or restriction in the 
FAMCC do not state a claim under EFTA, 15 U.S.C. §§ 1963 et seq. and Regulation E, 
12 C.F.R. §§ 1005.1 et seq. Mot. at 6-8.  According to BofA, “[n]one of these Plaintiffs 
have identified the electronic fund transfer that they sought information or clarification 
about,” and “[i]n fact, these Plaintiffs make no allegations regarding any electronic fund 
transfers on their accounts at all,” but instead allege that “they sought information about 
freezes or restrictions that prevented transfers on their accounts.”  Mot. at 8 (emphasis 
in original).  However, as discussed below, BofA imposes an artificially restrictive 
standard for what is purportedly required to seek information or clarification about an 
“electronic fund transfer” on a bank account, and BofA’s argument conflicts with the 
Court’s own analysis in its Order.  
 
2 See FAMCC ¶¶ 292 (K. Alvarez), 296–298 (R. Anderson, A. Andrade, S. De Los Angeles, Sr.), 
300 (R. Arnoldstarr), 301 (V. Arrey), 303 (C. Back), 305–309 (D. Beckham, S. Beehler, A. Bennett, 
F. Berlt, S. Blacksands), 317 (M. Bynum), 321 (K. Carpenter), 322 (P. Castillo), 326 (A. Chavez), 
335–337 (T. D’Agostino Criado, H. Dale, M. de Vera), 343–346 (L. Dones, A. Douglas, B. 
Douglass, K. Duey), 348 (P. Echeverria), 352 (J. Estrada), 355 (J. Flores), 357 (S. Flores), 359 (M. 
Friday), 365 (L. Georege), 376 (N. Guirguis), 383 (M. Haney), 390 (B. Hassanshahi), 392 (G. 
Heinz), 395 (V. Hernandez), 402 (Q. Huynh), 404 (J. Isles), 413 (V. Jones), 418–420 (S. Laxton, T. 
Lind, L. Littles), 423 (R. Madrid), 424 (M. Madrid), 431 (C. McCafferty), 440 (S. Morgan), 445 (S. 
Murphy), 448 (F. Ortiz, Jr.), 454 (A. Perez), 456 (K. Perkins), 462 (T. Pomeroy), 464 (J. Pummill), 
469 (K. Reed), 476 (J. Robles), 481 (R. Salaz), 497 (D. Talia), 506 (R. Valadez), 512 (N. Walker), 
514 (C. Wilburn), 516–518 (T. Wilkins, Z. Williams, T. Williams), 523–525 (C. Wood, M. Yeats, G. 
Young).   

 
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The EFTA is a federal consumer protection law “establishing the rights, 
liabilities, and responsibilities of participants in electronic fund and remittance transfer 
systems.”  15 U.S.C. § 1693(a).  The EFTA, together with its implementing regulation, 
Reg E, regulates electronic fund transfers which directly affect consumer accounts. § 
1963(a)(7).  Under Section 1693f(a), which details EFTA’s error resolution procedures, 
when a consumer notifies a financial institution that the consumer believes an “error” 
has occurred in his or her account, the “financial institution shall investigate the alleged 
error, determine whether an error has occurred, and report or mail the results of such 
investigation and determination to the consumer within ten business days.”  Id., § 
1693f(a). The EFTA mandates specific steps the financial institution must take 
depending on the results of its investigation, as well as the time frames in which the 
steps must be taken.  Id., § 1693f(b)–(d). 
Significantly, the Court noted that while an account freeze alone did not 
constitute a qualifying error as defined by the EFTA, consumers whose accounts were 
frozen could establish a qualifying error on some other basis, such as that those 
Individual Plaintiffs “reporting an account freeze also requested additional 
information” to determine whether an error existed in the Bank’s failure to make EDD 
benefits transfers into their EDD Debit Card accounts.  See Order, 2023 WL 3668535, 
at *8 (emphasis added).   
In adopting this reasoning, the Court necessarily rejected BofA’s position that the 
16 Individual Plaintiffs who reported account freezes and requested additional 
information “to determine whether there was an incorrect or omitted EDD benefits 
transfer into the account” failed to report a qualifying error or to state a claim under the 
EFTA.  Instead, the Court dismissed these Plaintiffs’ EFTA claims with leave to amend 
due to the MCC’s failure to “allege that any individual Plaintiff reporting an account 
freeze also requested additional information.”  Id. (citing MCC ¶¶ 309 (Stone 
Blacksands); 344 (Anthony Douglas); 357 (Stephanie Flores); 376 (Noah Guirguis); 
392 (Gretchen Heinz); 402 (Quoc Huynh); 413 (Victoria Jones); 418 (Sabrina Laxton); 

 
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419 (Tonya Lind); 420 (Limmie Littles); 448 (Frank Ortiz, Jr.); 497 (Danny Talia); 514 
(Cameren Wilburn); 516 (Terrence Wilkins); 517 (Zacharia Williams); and 523 (Colton 
Wood)).   
BofA does not dispute that each of these Freeze Only Individual Plaintiffs has 
now amended their claims to clarify that each requested additional or clarifying 
information regarding bank errors resulting in missing deposits or other omissions of 
EDD benefits transfers into their accounts while the freeze continued to be in effect.  
See FAMCC ¶¶ 309, 344, 357, 376, 392, 402, 413, 418, 419, 420, 448, 497, 514, 516, 
517 and 523.  These amended allegations adequately allege that each of those Individual 
Plaintiffs timely informed BofA representatives, repeatedly, that their accounts were 
frozen or otherwise restricted and they could not conduct transfers, and each of those 
Individual Plaintiffs requested additional documentation and clarification into the 
omitted transfers.   
BofA asks the Court to reverse itself and hold that EFTA only applies to 
fraudulent “unauthorized transactions.” However, the statutory coverage under EFTA 
is much broader.  While EFTA defines “errors” to include “unauthorized transactions,” 
such “errors” also include 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” in turn 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 ignores, an EFTA “error” includes 
any “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.   

 
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Every “Freeze Only” Individual Plaintiff alleges that they timely notified BofA 
and requested “additional information or clarification” from BofA surrounding the 
issues related to their accounts, including any determination regarding missing deposits 
and failure to credit amounts to the accounts as a result of a freeze or restriction.  Under 
those circumstances, the requests for additional information and clarification constitute 
reporting of “errors” under 15 U.S.C. § 1693f(f)(6).  Additionally, contrary to BofA’s 
assertion, a reversal of a provisional credit and an account freeze or block are errors 
under EFTA when a consumer asks for “additional information or clarification” from 
BofA pursuant to 15 U.S.C. § 1693f(f)(6).   
BofA cites Hardin v. Bank of America, N.A., 2022 WL 3568568 (E.D. Mich. 
Aug. 18, 2022) in support of its argument, but that case did not purport to analyze this 
issue and instead merely reiterated that “the EFTA does not regulate account freezes” 
and that “requests for additional information or clarification apply only for requests 
‘concerning an electronic fund transfer’” and “do not include ‘routine inquir[ies] about 
the consumer’s account balance,’ among other ‘recordkeeping’ requests.”  Id. at *3 
(citations omitted).   
In short, the Court already properly rejected the erroneous interpretation of 
EFTA, which BofA reiterates in its Motion.  BofA provides no new arguments that 
would justify revisiting the issue.  Each of the “Freeze Only” Individual Plaintiffs has 
amended her factual allegations to address the Court’s concerns.  Accordingly, the 
Motion to Dismiss their EFTA claims should be denied.   
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CONCLUSION 
 
For the foregoing reasons, this Court should deny the Motion to Dismiss as to the 
“Freeze Only” Individual Plaintiffs’ EFTA claims. 
 
Dated: September 17, 2023 
 
 
SWIGART LAW GROUP, APC 
 
 
 
 
 
 
 
By: 
/s/ Joshua B. Swigart______  
 
 
 
 
 
 
 
 
JOSHUA B. SWIGART 
 
 
 
 
 
 
 
 
Interim Co-Liaison Counsel and  
Attorneys for Individual Plaintiffs

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