Order Granting in Part and Denying in Part Motion to Dismiss the Master Consolidated Complaint — In re BofA Unemployment Litigation

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-LAB-MSB · Doc. 126 · 2023-05-25 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
 
 
Case No.: 21-md-2992-LAB-MSB 
 
ORDER:  
 
(1) GRANTING IN PART 
AND DENYING IN PART 
MOTION TO DISMISS 
MASTER CONSOLIDATED 
COMPLAINT, [Dkt. 64];  
 
(2) GRANTING IN PART 
AND DENYING IN PART 
REQUEST FOR JUDICIAL 
NOTICE, [Dkt. 84-2]; and 
 
(3) GRANTING REQUEST 
FOR JUDICIAL NOTICE, 
[Dkt. 90-1] 
 
This multi-district litigation arises from a wave of transaction fraud that 
targeted California’s public benefits programs in mid-2020. Numerous class and 
individual actions have been brought against Defendant Bank of America, N.A. 
(“BANA”) over its administration of California’s electronic benefits payment 
system. Those actions were transferred to this Court for consolidated pretrial 
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proceedings by the Judicial Panel on Multidistrict Litigation. (Dkt. 1). Following the 
Court’s Case Management Order, (Dkt. 48), Plaintiffs filed a Master Consolidated 
Complaint (“MCC”), (see Dkt. 72, MCC), which BANA now moves to dismiss in its 
entirety. (Dkt. 84). BANA also filed a request for judicial notice in support of its 
motion. (Dkt. 84-2). Plaintiffs oppose BANA’s motion and request for judicial 
notice, (Dkt. 90, 90-2), and filed their own request for judicial notice in support of 
their opposition, (Dkt. 90-1). 
Having considered the parties’ submissions and the relevant law, the Court 
GRANTS IN PART and DENIES IN PART BANA’s motion to dismiss; GRANTS 
IN PART and DENIES IN PART BANA’s request for judicial notice; and GRANTS 
Plaintiffs’ request for judicial notice. 
I. 
BACKGROUND 
A. 
BANA’s Contract to Provide Public Benefits in California 
Bank of America, N.A., is a financial institution incorporated in Delaware and 
headquartered in North Carolina. (MCC ¶ 35). In 2010, BANA entered into an 
exclusive contract to provide electronic benefits payment services for the 
California Employment Development Department (“EDD”). (Id. ¶ 39). EDD is the 
state agency responsible for administering numerous benefits programs, including 
providing unemployment insurance, pandemic unemployment assistance, 
pandemic emergency unemployment compensation, disability insurance, and 
paid family leave. (Id. ¶ 38). EDD extended BANA’s exclusive contract in 2015 
and entered into the current BANA-EDD Contract. (Id. ¶ 42). The BANA-EDD 
Contract expressly provides that the contracting parties entered into the 
agreement “for the purpose of [BANA] establishing, operating and maintaining a 
comprehensive Electronic Benefit Payment (EBP) service for the EDD.” (Chestnut 
Decl., Ex. 2 at 6; Danitz Decl., Ex. B at 15). 
Under the terms of the BANA-EDD Contract, approved applicants receive 
periodic EDD benefit payments through prepaid debit cards (“EDD Debit Cards”) 
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issued and administered by BANA. (Id. ¶ 2). These cards are linked to individual 
BANA deposit accounts. (Id.). EDD Debit Cards are the default means of receiving 
EDD benefits, (id. ¶¶ 41, 47), and EDD presents them as the exclusive means of 
receiving benefits payments, (id. ¶ 47 n.1). The cards issued by BANA use 
magnetic stripe technology, which allows a cardholder to make payments by 
swiping his or her card. (Id. ¶¶ 59, 69). Magnetic stripes, while once the industry 
standard for debit cards, have more recently fallen out of favor because they are 
easily readable and highly susceptible to misuse. (Id. ¶ 61). The current industry 
standard for debit card security is the Europay, Mastercard and Visa (“EMV”) chip, 
a technology that is substantially more secure that magnetic stripes. (Id. 
¶¶ 66–68). BANA has used EMV chips in corporate cards since 2011, and all 
consumer debit cards since 2014, but didn’t use the technology in its EDD Debit 
Cards. (Id. ¶¶ 64–65, 68–69).  
BANA hired various subcontractors to assist it in completing its obligations 
under the BANA-EDD Contract. (Id. ¶ 595). One of these subcontractors, TTEC 
Holdings, Inc. (“TTEC”), provided customer service and ran call center operations 
for BANA. (Id.). TTEC hired hundreds of employees without conducting 
background checks. (Id.). These employees were granted access to Cardholders’ 
account and personal information. (Id.). 
To receive an EDD Debit Card, BANA requires every EDD Cardholder to 
disclose personal information and enter into a uniform written contract entitled 
California Employment Development Department Debit Card Account Agreement 
(“Account Agreement”). (Id. ¶ 71; see also Dkt. 90-3, Danitz Decl., Ex. A).1 The 
 
1 Both parties filed versions of the account agreement with their requests for 
judicial notice. (See Dkt. 84-3, Chestnut Decl., Ex. 1 (BANA’s version); 90-3, 
Danitz Decl., Ex. A (Plaintiffs’ version)). For the reasons discussed in the analysis 
of Plaintiffs’ contract claim, the version submitted by Plaintiffs is incorporated by 
reference into the MCC. See infra Section III.F.1.  
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Account Agreement details when funds become available and outlines BANA’s 
right to place a “freeze” on a Cardholder’s account if BANA “suspect[s] irregular, 
unauthorized, or unlawful activities.” (Danitz Decl., Ex. A § 2). The freeze may 
continue until BANA completes an investigation. (Id.). The document also sets 
forth detailed procedures Cardholders must follow to report unauthorized 
transactions, (id. § 9), or errors in account statements, (id. § 11). These 
procedures include BANA’s “zero liability” policy for unauthorized transactions, 
which provides EDD Cardholders will incur no liability for unauthorized 
transactions reported “within a reasonable time.” (Id. § 9, MCC ¶ 71). What 
constitutes a “reasonable time” is determined at BANA’s sole discretion, but is no 
less than 60 days. (Danitz Decl., Ex. A § 9; MCC ¶ 71). Cardholders must report 
any other error within 60 days of the date BANA sends the statement on which 
the error first appears. (Danitz Decl., Ex. A § 11; MCC ¶ 71). The Account 
Agreement provides both a phone number and mailing address for Cardholders 
to report unauthorized transactions or errors, and notes that “[t]elephoning is the 
best way of keeping your possible losses down.” (Danitz Decl., Ex. A §§ 10–11; 
MCC ¶ 71).  
Once BANA receives notice of an error, the Account Agreement provides 
that BANA “will determine whether an error occurred within 10 business days,” 
but reserves the right to “take up to 45 days to investigate” if it “need[s] more time,” 
in which case BANA promises to credit the Cardholder’s account within 
“10 business days for the amount [of the reported] error, so that [the Cardholder] 
will have the money” while BANA completes the investigation. (Danitz Decl., Ex. A 
§ 11; MCC ¶ 72).  
B. 
Fraud on EDD Debit Card Accounts and BANA’s Response 
In the spring of 2020, California’s unemployment rate increased 
exponentially as a result of the COVID-19 pandemic and subsequent state and 
county closure orders. (MCC ¶ 74). Since March 2020, EDD received at least 
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18.5 million claims for EDD benefits, and BANA issued more than 9 million EDD 
Debit Cards to individuals found eligible for benefits. (Id. ¶ 75). During this time, 
there was a marked increase in fraud targeting EDD Cardholders, with thousands 
of benefits recipients experiencing substantial financial losses due to 
unauthorized transactions. (Id. ¶¶ 76–77). Plaintiffs in this consolidated action 
were among those affected by the fraud. (See generally id. ¶¶ 114–285 (Class 
Plaintiffs’ allegations); 286–526 (individual Plaintiffs’ allegations)). Plaintiffs report 
experiencing either: (1) the loss of account funds due to unauthorized 
transactions, (see, e.g., id. ¶ 310); (2) fraud on their accounts, (see, e.g., id. 
¶ 292); or (3) account freezes, which prevented Plaintiffs from accessing their 
EDD benefits, (see, e.g., id. ¶ 309).  
Corresponding with the surge in fraud, BANA experienced a steep increase 
in reports of unauthorized transactions and errors from EDD Cardholders, 
including from Plaintiffs. Wait times on BANA’s customer service phone lines 
increased substantially as the number of calls grew. (Id. ¶¶ 87–88, 99). Some 
Plaintiffs waited on hold for hours, (see, e.g., id. ¶¶ 116–20), or had to call back 
multiple days in a row to reach a customer service representative, (see, e.g., id.). 
When Plaintiffs successfully reported unauthorized transactions, BANA often 
denied the claims within one or two days using form letters. (Id. ¶¶ 89–91; see, 
e.g., id. ¶¶ 130, 218). Some Plaintiffs were given “permanent” credits for stolen 
funds, only to have those credits later reversed without warning or explanation. 
(Id. ¶ 92; see, e.g., id. ¶¶ 127–35).  
Starting in October 2020, BANA implemented a new policy of automatically 
freezing the account of any EDD Cardholder who reported experiencing fraud, 
without notice or explanation. (Id. ¶ 93). Many accounts were frozen for months; 
some remain frozen. (Id. ¶¶ 94, 96).  
// 
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C. 
Procedural History 
On January 14, 2021, Class Plaintiff Jennifer Yick commenced the class 
action titled Yick v. Bank of America, N.A., No. 3:21-cv-376, in the U.S. District 
Court for the Northern District of California. (MCC ¶ 106). Eight additional class 
actions were subsequently filed and consolidated with Yick on March 29, 2021. 
(Id.). On April 1, 2021, the Class Plaintiffs in the Yick class action sought a 
preliminary injunction enjoining BANA from automatically denying fraud claims 
and freezing claimants accounts. The Yick court granted a preliminary injunction 
on May 17, 2021, and provisionally certified a class of all EDD Cardholders who 
call BANA to report unauthorized charges. (MCC, Ex. A). On June 1, 2021, 
following negotiations between the parties, the Yick court entered a preliminary 
injunction which: (1) barred BANA from considering the results of its Claim Fraud 
Filter when investigating claims; (2) prohibited BANA from denying claims without 
an investigation and providing the claimant with a written explanation; (3) 
prohibited BANA from freezing any account based on the results of the Claim 
Fraud Filter; (4) required BANA to reopen any claims previously denied based on 
the results of the Claim Fraud Filter; and (5) required BANA to establish dedicated 
toll-free numbers for Class Members seeking assistance with fraud claims or 
frozen accounts. (Id.). Around that same time, numerous individuals initiated 
actions against BANA for injuries stemming from the same alleged conduct. 
On June 4, 2021, the Judicial Panel on Multidistrict Litigation transferred the 
Yick class action and individually filed actions to this Court for consolidated pretrial 
proceedings. (Dkt. 1). Plaintiffs filed the MCC on August 17, 2021. The MCC 
includes the following claims: 
1. 
Violation of the Electronic Funds Transfer Act, 15 U.S.C. §§ 1963 et 
seq., and Regulation E ,12 C.F.R. §§ 1005.1 et seq.; 
2. 
Violation of the California Consumer Privacy Act, Cal. Civ. Code 
§§ 1798.100 et seq.; 
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3. 
Violation of the California Customer Records Act, Cal. Civ. Code 
§§ 1798.80 et seq.; 
4. 
Violation of California’s Unfair Competition Law, Cal. Bus. & Prof. 
Code §§ 17200 et seq.; 
5. 
Negligence; 
6. 
Negligent hiring, supervision, and retention;  
7. 
Breach of contract;  
8. 
Breach of implied contract; 
9. 
Breach of the implied covenant of good faith and fair dealing; 
10. 
Breach of fiduciary duty; 
11. 
Third-party beneficiary breach of contract;  
12. 
Third-party beneficiary breach of the implied covenant of good faith 
and fair dealing; 
13. 
Violation of the Due Process Clause of the Fourteenth Amendment of 
the United States Constitution; and  
14. 
Violation of the Due Process Clause of the California Constitution. 
(See generally MCC). BANA now moves to dismiss the MCC in its entirety. 
(Dkt. 84). BANA also filed a request for judicial notice in support of its motion. 
(Dkt. 84-2). Plaintiffs oppose BANA’s motion and request for judicial notice. 
(Dkt. 90, 90-2). They also filed a request for judicial notice support of their 
opposition. (Dkt. 90-1). 
II. 
LEGAL STANDARD 
A. 
Rule 12(b)(6): Failure to State a Claim 
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. 
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “To survive a motion to 
dismiss, a complaint must contain sufficient factual matter, accepted as true, to 
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007)). A claim 
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is plausible if the factual allegations supporting it permit “the court to draw the 
reasonable inference that the defendant is liable for the misconduct alleged.” Id. 
The factual allegations need not be detailed; instead, the plaintiff must plead 
sufficient facts that, if true, “raise a right to relief above the speculative level.” 
Twombly, 550 U.S. at 545. The plausibility standard isn’t a “‘probability 
requirement,’ but it asks for more than a sheer possibility that a defendant has 
acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). 
Courts aren’t required to accept legal conclusions couched as factual allegations 
and “formulaic recitation[s] of the elements of a cause of action” aren’t sufficient. 
Twombly, 550 U.S. at 555. The Court accepts as true all facts alleged in the 
complaint and draws all reasonable inferences in favor of the plaintiff. Davis v. 
HSBC Bank Nev., N.A., 691 F.3d 1152, 1159 (9th Cir. 2012). Ultimately, a court 
must determine whether the plaintiff’s alleged facts, if proven, permit the court to 
grant the requested relief. See Iqbal, 556 U.S. at 666; Fed. R. Civ. P. 8(a)(2). 
B. 
Rule 12(b)(1): Lack of Standing 
A motion to dismiss for lack of standing is “properly raised in a Rule 12(b)(1) 
motion to dismiss.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 
1122 (9th Cir. 2010) (“[S]tanding . . . pertain[s] to federal courts’ subject matter 
jurisdiction.”). To have standing to bring a suit in federal court, a plaintiff must 
show: (1) injury in fact; (2) causation; and (3) redressability. Lujan v. Defenders of 
Wildlife, 504 U.S. 555, 560–61 (1992). To establish injury in fact, a plaintiff must 
show she suffered “an invasion of a legally protected interest which is (a) concrete 
and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” 
Id. at 560 (internal marks and citations omitted).  
// 
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III. 
DISCUSSION 
A. 
Electronic Funds Transfer Act and Regulation E (Claim 1) 
The MCC’s first claim alleges BANA violated the Electronic Funds Transfer 
Act (“EFTA”), 15 U.S.C. §§ 1963 et seq., and Regulation E (“Reg E”), 12 C.F.R. 
§§ 1005.1 et seq., by failing to comply with the required error resolution procedure. 
(MCC ¶¶ 533–45).2 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 § 1693f(a), which details the 
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.” § 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. § 1693f(b)–(d).  
1. 
Sufficiency of Notice 
BANA first argues that Plaintiffs failed to provide notice sufficient to trigger 
BANA’s obligations under the EFTA, 15 U.S.C. § 1693f, and Reg E, 12 C.F.R 
§ 1005.11. (Dkt. 84-1 at 17–18). A financial institution is only required to act if the 
consumer meets certain notice requirements. See 15 U.S.C. § 1693f(a); 12 C.F.R. 
§ 1005.11(b). Crucially, the notice must identify a qualifying error as defined by 
the EFTA, 15 U.S.C. § 1693f(f), and Reg E, 12 C.F.R. § 1005.11(a). Additionally, 
the notice must: (i) be received by the financial institution no later than 60 days 
 
2 The EFTA claim is brought by all Plaintiffs. (See MCC at 236).  
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after the institution sends the documentation reflecting the error; (ii) “[e]nable[] the 
institution to identify the consumer’s name and account number”; and 
(iii) “[i]ndicate[] why the consumer believes an error exists and include[] to the 
extent possible the type, date, and amount of the error.” 12 C.F.R. 
§ 1005.11(b)(1)(i)–(iii); see also 15 U.S.C. § 1693f(a)(1)–(3). Requests for 
additional information or documentation don’t need to include the amount of the 
error. 12 C.F.R. § 1005.11(b)(1)(iii). 
i. 
Timely Notice 
The EFTA requires consumers to report any alleged errors to a financial 
institution within 60 days of the date the institution sends the written 
documentation first reflecting the error. See Camacho v. JPMorgan Chase Bank, 
No. 5:14-CV-04048-EJD, 2015 WL 5262022, at *3 (N.D. Cal. Sept. 9, 2015) (citing 
15 U.S.C. § 1693f(a)). A complaint that doesn’t allege that a consumer provided 
timely notice doesn’t state a claim under the EFTA. Id. at *4 (dismissing EFTA 
claim when consumer didn’t notify bank within 60 days of receiving documentation 
reflecting the error). At the pleading stage, a complaint must state sufficient facts, 
construed in the light most favorable to the plaintiff, to plausibly allege timely 
notice. Id. at *2, *4.  
BANA argues several Plaintiffs fail to state claims under the EFTA because 
they don’t sufficiently allege that timely notice was provided. (Dkt. 84-1 at 18). The 
Court agrees in part, and holds that two groups of individual Plaintiffs haven’t 
plausibly alleged providing timely notice. First, those individual Plaintiffs who have 
failed to allege notifying BANA at all haven’t stated a claim under the EFTA. (See 
MCC ¶¶ 302 (Christal Ayala); 325 (Randy Chase); 387 (Ivan Harris); 394 (Ruben 
Hernandez); 399 (Terrance Howze); 407 (Robert Jaurigue, Jr.); 467 (Mykela 
Raiff); 470 (Nehemiah Rima-Fleurima); 473 (Miguel Roa); 474 (Carmen 
Robinson); 483 (Frankie Saldate); 485 (Timothy Schmitz); 488 (Jenna Silva); 
505 (Thomas Turner); 526 (Christopher Zettlemoyer)).  
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Second, those individual Plaintiffs who allege discovering and reporting 
fraud more than 60 days after they would have plausibly been sent documentation 
containing the error haven’t plausibly alleged providing timely notice. The 60-day 
notification period starts when the financial institution sends a consumer the 
periodic statement which first reflects the error. See 15 U.S.C. § 1693f(b)(1)(i); 
12 C.F.R. § 1005.11(b)(1)(i). Here, BANA provided Plaintiffs with monthly account 
statements reflecting the previous month’s transactions. (See, e.g., MCC ¶ 274). 
Construing this allegation in the light most favorable to Plaintiffs, the 60-day period 
started at the end of the month a statement was received. Any notification made 
after the 60-day period was untimely, didn’t trigger BANA’s obligations under the 
EFTA, and can’t support a claim under the statute. (See MCC ¶¶ 312 (James 
Brooks alleges fraud occurred in June 2020 and July 2020, but that he didn’t 
discover and report the fraud until January 2021, despite having access to his 
account starting in July 2020); 422 (Ernie Loredo alleges fraud occurred in June 
2020, but that he didn’t discover and report the fraud until March 2021); 435 
(Travis Middleton alleges fraud occurred in April 2020, but that he didn’t discover 
and report the fraud until December 2021); 491 (Denise Smith alleges fraud 
occurred in November 2020, but that she didn’t discover and report the fraud until 
May 2021)).  
BANA’s motion to dismiss the MCC’s EFTA claims as untimely is 
GRANTED as to the individual Plaintiffs referenced above. Their EFTA claims are 
DISMISSED WITH LEAVE TO AMEND for failure to provide timely notice.3  
 
3 BANA’s motion to dismiss the EFTA claims as untimely is DENIED as to any 
Plaintiff who alleges he or she attempted to call BANA to report fraud, but that 
BANA never answered. (See, e.g., MCC ¶¶ 287 (“In March 2021, [Kobe Abbot] 
attempted to report the fraud to Bank of America; however, Bank of America has 
never answered a single call.”); 472 (“In August 2020, [Israel Rivera] attempted to 
report the fraud to Bank of America via phone. Bank of America has yet to respond 
 
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BANA also moves to dismiss Flouzel Paningbatan’s EFTA claim due to 
untimely notice. (Dkt. 84-1 at 18 (discussing MCC ¶ 451)). Paningbatan alleges 
fraud occurred in her account between May 2020 and October 2020, but that she 
didn’t discover and report the fraud to BANA until December 2020. (MCC ¶ 451). 
Construing this allegation in the light most favorable to Paningbatan, the latest 
she could have learned of the fraud was when she received her November 2020 
statement. Thus, the 60-day notification period would have expired in 
January 2021. The Court finds these allegations plausibly support the inference 
that Paningbatan’s notice was timely. BANA’s motion to dismiss Paningbatan’s 
EFTA claim as untimely is therefore DENIED. (See also id. ¶ 456 (Kenyon Perkins 
alleges fraud occurred between April 2020 and September 2020, but that he didn’t 
discover and report the fraud until December 2020)).  
ii. 
Qualifying Error 
BANA also argues that a number of individual Plaintiffs’ EFTA claims should 
be dismissed for failure to report an error as defined by the statute. (Dkt. 84-1). 
To trigger a financial institution’s obligations under the EFTA, consumers must 
identify a qualifying error—general allegations of fraud aren’t sufficient. See  
15 U.S.C. § 1693f(a); 12 C.F.R. § 1005.11(b). Qualifying errors include: 
“unauthorized electronic fund transfer[s],” 12 C.F.R. § 1005.11(a)(1)(i); “[t]he 
omission of an electronic fund transfer from a periodic statement,” 
§ 1005.11(a)(1)(iii); “[t]he consumer’s request for documentation required by . . . 
§ 1005.10(a) or for additional information or clarification concerning an electronic 
fund transfer, including a request the consumer makes to determine whether an 
error exists,” § 1005.11(a)(1)(vii). See also 15 U.S.C. § 1693f(f)(1), (3), (6) (EFTA 
 
to a single phone call.”)); see also 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.”) (citations 
omitted). 
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section listing errors). Under the EFTA, an “unauthorized electronic transfer” is 
defined as “an electronic fund transfer from a consumer’s account initiated by a 
person other than the consumer without actual authority to initiate such transfer 
and from which the consumer receives no benefit.” 15 U.S.C. § 1693a(12); see 
also 12 C.F.R. § 1005.2(m) (same). The definition of unauthorized electronic 
transfer doesn’t include any electronic fund transfer: 
(A) initiated by a person other than the consumer who was 
furnished with the card, code, or other means of access to 
such consumer’s account by such consumer, unless the 
consumer has notified the financial institution involved that 
transfers by such other person are no longer authorized, 
(B) initiated with fraudulent intent by the consumer or any 
person acting in concert with the consumer, or 
(C) which constitutes an error committed by a financial 
institution. 
15 U.S.C. § 1693a(12)(A)–(C); see also 12 C.F.R. § 1005.2(m)(1)–(3) (same). 
A bare allegation that “fraud” occurred and was subsequently reported to 
the financial institution is insufficient to support an inference that the consumer 
reported a qualifying error. See, e.g., Hardin v. Bank of Am., N.A., No. 2:22-cv-
10023, 2022 WL 3568568, at *3 (E.D. Mich. Aug. 18, 2022). Individual Plaintiffs 
who allege they “experienced fraud on [their] account[s]” and reported the fraud 
to BANA, but didn’t report a qualifying error, therefore haven’t stated claims under 
the EFTA. (See MCC ¶¶ 292 (Kevin Alvarez); 296 (Rebekah Anderson); 297 
(Amanda Andrade); 298 (Samuel De Los Angeles, Sr. ); 300 (Robert Arnoldstarr); 
301 (Vanessa Arrey); 303 (Celina Back); 305 (Douglas Beckham); 306 (Sky 
Beehler); 307 (Amber Bennett); 308 (Forrest Berlt); 317 (Mario Bynum); 321 
(Kimberly Carpenter); 322 (Patricia Castillo); 326 (Angela Chavez); 337 (Michell 
de Vera); 343 (Lorina Dones); 345 (Benjamin Douglass); 352 (Juan Estrada); 355 
(Jacob Flores); 359 (Meredith Friday); 365 (George Laquitta); 395 (Vanessa 
Hernandez); 404 (Juanita Isles); 454 (Ann Perez); 462 (Tina Pomeroy); 464 
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(Joshua Pummill); 469 (Kawana Reed); 476 (Joe Robles); 524 (Matthew Yeats); 
525 (Glen Young)).  
Similarly, an allegation that a third party applied for benefits in another 
consumer’s name or gained access to a consumer’s account, while likely 
fraudulent, doesn’t constitute a “qualifying error” under the statute. 15 U.S.C. 
§ 1693f(f); 12 C.F.R. § 1005.11(a). Individual Plaintiffs who allege that they 
notified BANA that fraud occurred on their account after a third party applied for 
and/or received EDD benefits in their name therefore didn’t report a qualifying 
error. (See, e.g., MCC ¶¶ 346 (Kayli Duey); 348 (Peter Echeverria); 383 (Micah 
Haney); 390 (Bahram Hassanshahi); 424 (Mario Madrid); 440 (Sharise Morgan); 
456 (Kenyon Perkins); 506 (Reina Valadez); 512 (Norman Walker); 518 (Tyrisha 
Williams)). The same holds true for individual Plaintiffs who allege they 
“experienced fraud” and notified BANA of fraud after: (1) a third party tried to 
change their account address, (see id. ¶¶ 335 (Teresa D’Agostino Criado); 336 
(Heather Dale)); (2) their account information or card was stolen, (id. ¶¶ 423 
(Raina Madrid alleging she experienced fraud when her phone containing her 
account information was stolen); 431 (Christina McCafferty alleging she 
experienced fraud when her phone and EDD card were stolen)); or (3) after they 
were unable to access their accounts; (id. ¶¶ 445 (Sarah Murphy alleging fraud 
when she was unable to sign into her account); 481 (Raylene Salaz alleging fraud 
when she was unable to access her account)).  
BANA’s motion to dismiss the MCC’s EFTA claims for failure to report a 
qualifying error is GRANTED as to the individual Plaintiffs identified above. Those 
EFTA claims are DISMISSED WITH LEAVE TO AMEND. 
On the other hand, allegations that a consumer: (1) identified a fraudulent 
or unauthorized transaction or withdrawal (including by looking at their account or 
transaction history); and (2) reported “fraud” to the financial institution are 
sufficient to support the reasonable inference that the consumer reported an 
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unauthorized transaction or withdrawal (both of which qualify as errors within the 
meaning of the EFTA) when reporting the “fraud.” See Iqbal, 556 U.S. at 678. 
BANA’s motion to dismiss is DENIED as to those individual Plaintiffs making such 
allegations. (See, e.g., MCC ¶¶ 304 (Mark Barnettte); 310 (Dean Bommel); 375 
(Jeffrey Guadalajara); 471 (Rhonda Ritchey); 384 (Preston Hanna); see also id. 
¶¶ 382 (James Hanes alleging he received a text alert following “fraud”); 500 
(same for Tonya Taylor)).  
Additionally, BANA’s motion to dismiss is DENIED as to Anthony Franks, 
who alleges he contacted BANA after he discovered his account didn’t contain 
expected funds from EDD. (Id. ¶ 358). Franks’s allegation supports the 
reasonable inference that he notified BANA of “[t]he omission of an electronic fund 
transfer from a periodic statement,” which constitutes error under the EFTA. 
12 C.F.R. § 1005.11(a)(1)(iii); see also 15 U.S.C. § 1693f(f)(3) (same).  
BANA also maintains that individual Plaintiffs who reported account freezes 
alone should be dismissed for failing to report a qualifying error. (Dkt. 84-1 at 17). 
Neither EFTA nor Reg E lists account freezes as a qualifying error. See 15 U.S.C. 
§ 1693f(f); 12 C.F.R. § 1005.11(a)(1); Hardin, 2022 WL 3568568, at *3 (“[T]he 
EFTA does not regulate account freezes; it regulates electronic funds 
transfers. . . . And the regulation does not define account freezes as an ‘error’ 
covered under the EFTA.”). Plaintiffs argue that reporting an account freeze 
constitutes a qualifying error because each individual Plaintiff who reported an 
account freeze was also requesting additional information to determine whether 
there was an incorrect or omitted EDD benefits transfer into the account. (Dkt. 90 
at 13 & n.18). While Plaintiffs are correct that a request for “additional information 
or clarification concerning an electronic fund transfer, including a request [made] 
to determine whether an error exists,” is a qualifying error, see 12 C.F.R. 
§ 1005.11(a)(1)(vii); see also 15 U.S.C. § 1693f(f)(6) (same); 12 C.F.R. § 1005, 
Supp. I at 11(a) (Official Interpretation of § 1005.11(a)) (“A request for 
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documentation or other information must be treated as an error unless it is clear 
that the consumer is requesting a duplicate copy for tax or other record-keeping 
purposes.”), the MCC doesn’t allege that any individual Plaintiff reporting an 
account freeze also requested additional information. Because those allegations 
aren’t in the MCC, the Court can’t consider them. Davis, 691 F.3d at 1159 (noting 
that courts consider the factual allegations in the complaint when deciding a 
motion to dismiss). Without allegations that they specifically requested additional 
information, any individual Plaintiff who reported only an account freeze failed to 
report a qualifying error, and doesn’t state a claim under the EFTA (See 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); 419 (Tonya Lind); 420 (Limmie Littles); 448 (Frank Ortiz, 
Jr.); 497 (Danny Talia); 514 (Cameren Wilburn); 516 (Terrence Wilkins); 517 
(Zacharia Williams); 523 (Colton Wood)). BANA’s motion to dismiss the MCC’s 
EFTA claims for failure to report a qualifying error is GRANTED as to the individual 
Plaintiffs, identified above, who reported account freezes only. Those EFTA 
claims are DISMISSED WITH LEAVE TO AMEND. 
iii. 
Explanation of Belief an Error Exists 
BANA next argues that the remaining Plaintiffs failed to notify BANA of the 
“reason why [they] believe[d] an error exist[ed].” (Dkt. 84-1 at 18 (quoting  
12 C.F.R. § 1005.11(b)(1)(iii)). To trigger a financial institution’s obligations under 
the EFTA, a consumer’s notice must “[i]ndicate[] why the consumer believes an 
error exists and include[] to the extent possible the type, date, and amount of the 
error.” 12 C.F.R. § 1005.11(b)(1)(iii); see also 15 U.S.C. § 1693f(a)(3). Requests 
for additional information or documentation don’t need to include the amount of 
the error. 12 C.F.R. § 1005.11(b)(1)(iii). 
BANA argues that in order to state a claim under the EFTA a consumer’s 
notice to the financial institution must specifically indicate the reason for the 
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consumer’s belief that an error exists. (Dkt. 84-1 at 18). BANA contends that 
generalized allegations, such as allegations that a consumer “reported the fraud,” 
are insufficient. (Id.); see also Ghalchi v. U.S. Bank, N.A., No. 2:14-cv-6619-PSG-
CW, 2015 WL 12655402, at *8 (C.D. Cal. Jan. 8, 2015) (dismissing the plaintiff’s 
EFTA claim for failure to “pled that she informed Defendant of the type of error 
that triggers Defendant’s duties under the EFTA or that she notified Defendant 
with the specificity that triggers those duties” when the complaint’s “description of 
her notice to Defendant only indicates that she ‘notified’ Defendant of 
‘unauthorized withdrawals’ from her Checking Account”). In response, Plaintiffs 
argue that their “allegations show, and at minimum give rise to a plausible 
inference, that Plaintiffs conveyed their stated reasons for claiming fraud . . . and 
are far more detailed than the bare-bones allegations held insufficient in [BANA’s] 
cited cases.” (Dkt. 90 at 6).  
The allegations in the cases BANA cites are significantly less detailed than 
the allegations here. Compare Compl. ¶ 28, Ghalchi v. U.S. Bank, N.A, No. 2:14-
cv-6619-PSG-CW (C.D. Cal. Aug. 22, 2014), ECF No. 1 (Plaintiff notified U.S. 
Bank, N.A., “that there were, among other things, unauthorized withdrawals from 
the Account.”), with, e.g., (MCC ¶¶ 152–55 (Class Plaintiff Roland Oosthuizen 
identified five $1,000 withdrawals he didn’t make or authorize. When he called 
BANA the day after discovering the withdrawals, he “made a fraud claim 
concerning the missing $5,000.”); 177–80 (Class Plaintiff J. Michael Willrich 
identified $4,000–$5,000 in unauthorized transactions and contacted BANA to 
speak to a “Bank representative and submit a fraud claim regarding the 
unauthorized transactions. Willrich and the Bank representative spent 
approximately one hour going through every charge during a three-month period 
to ensure all fraudulent activity was accounted for.”); 286 (Individual Plaintiff Paul 
Abarr identified “fraudulent transactions on his Account totaling approximately 
$8,000. . . . [H]e reported the fraud to Bank of America via phone.”).  
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Additionally, while BANA is correct that Plaintiffs haven’t set out factual 
allegations specifically demonstrating their notice included a reason for their belief 
an error exists, (see Dkt. 92 at 9), the assertion that such detail is required by the 
Federal Rules of Civil Procedure is incorrect, Twombly, 550 at 555 n.3 (noting that 
“the Federal Rules eliminated the cumbersome requirement that a claimant ‘set 
out in detail the facts upon which he bases his claim’”) (citation omitted). Instead, 
a plaintiff must “state[] the circumstances, occurrences, and events in support of 
the claim presented.” Id. (citing 5 C. Wright & A. Miller, Federal Practice and 
Procedure § 1202 (3d ed. 2004)). Factual allegations sufficient to support a 
plausible inference are sufficient to state a claim under the Federal Rules. See 
Davis, 691 F.3d at 1159.  
The Court holds that Plaintiffs’ allegations as to the remaining EFTA claims 
are sufficient to support an inference that each Plaintiff notified BANA of the 
reason for his or her belief an error existed. For example, Class Plaintiff Roland 
Oosthuizen alleges he identified five $1,000 withdrawals he didn’t make or 
authorize, (MCC ¶ 152), and that he called BANA and “made a fraud claim 
concerning the missing $5,000,” (id. ¶ 155). Those allegations are more than 
enough to permit the Court to infer that Oosthuizen “indicated why [he] believe[d] 
an error exist[ed]” during his call with BANA. 12 C.F.R. § 1005.11(b)(1)(iii). The 
same is true for the other Plaintiffs with remaining EFTA claims. BANA’s motion 
to dismiss the remaining EFTA claims for failure to allege “why the consumer 
believes an error exists” is DENIED.  
2. 
Violation of EFTA 
BANA next argues that the MCC fails to identify conduct that violated the 
EFTA or Reg E. (Dkt. 84-1 at 19–20). Plaintiffs disagree, arguing the MCC alleges 
BANA failed to conduct a reasonable, good faith investigation and failed to provide 
documentation required by the statute. (Dkt. 90 at 8–10). Section 1693f requires 
that a financial institution investigate any qualifying error reported by the 
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consumer within ten business days of receiving notice of such error. 15 U.S.C. 
§ 1693f(a). For reports of unauthorized electronic fund transfers, “[t]he financial 
institution bears the burden of establishing that a transaction was authorized.” 
Green v. Cap. One, N.A., 557 F. Supp. 3d 441, 450 (S.D.N.Y. 2021); see also 
15 U.S.C. § 1963g(b).  
Section 1693f offers little guidance on what constitutes a reasonable 
investigation of a properly reported error. However, Reg E provides that “a 
financial institution’s review of its own records regarding an alleged error” satisfies 
§ 1963f’s investigation requirement if:  
(i) The alleged error concerns a transfer to or from a third 
party; and 
(ii) There is no agreement between the institution and the 
third party for the type of electronic fund transfer involved. 
12 C.F.R. § 1005.11(c)(4). The Official Interpretation of § 1005.11(c)(4) provides 
additional detail on financial institutions’ investigative obligations under Reg E:  
When there is no agreement between the institution and 
the third party for the type of [electronic fund transfer] 
involved, the financial institution must review any relevant 
information within the institution’s own records for the 
particular account to resolve the consumer’s claim. The 
extent of the investigation required may vary depending on 
the facts and circumstances. However, a financial 
institution may not limit its investigation solely to the 
payment instructions where additional information within its 
own records pertaining to the particular account in question 
could help to resolve a consumer’s claim.  
12 C.F.R. § 1005, Supp. I at 11(c)(4) (Official Interpretation of § 1005.11(c)(4)). 
“[W]hen read in conjunction with the implementing regulations and Official 
Interpretation, § 1693f requires that any investigation under the statute include a 
reasonable review of the financial institution’s own records.” Green, 577 F. Supp. 
3d at 450–51.  
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Plaintiffs contend that BANA’s investigations into their error reports were 
inadequate for at least two reasons. First, they argue BANA summarily denied 
their claims without completing the required investigations. (Dkt. 90 at 8). In 
support of this argument, Plaintiffs point to information which, if reviewed, would 
have led BANA to grant Plaintiffs’ claims. (Id.; see, e.g., MCC ¶ 310 (Dean 
Bommel, a California resident, reported $5,000 of unauthorized, overseas 
transactions)). They also contend the rapid denial of claims and use of boilerplate 
denial letters lends additional support to their allegation. (Dkt. 90 at 8). Second, 
Plaintiffs argue their allegation that BANA’s admitted “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,” (MCC ¶ 108), plausibly suggests BANA wasn’t conducting 
individualized investigations. (Dkt. 90 at 9).  
BANA argues these allegations are insufficient to state a claim because they 
are conclusory and not specific to each Plaintiff. (Dkt. 84-1 at 19). It also argues 
that the EFTA doesn’t bar the use of automated investigative tools, such as the 
Claim Fraud Filter. (Id.). BANA doesn’t, however, make any “affirmative argument 
regarding any review it actually conducted of its own records. Rather, [BANA’s] 
moving brief is silent as to what its investigation entailed.” Green, 557 F. Supp. 3d 
at 452. 
Each remaining Plaintiff alleges either specific unauthorized transactions or 
generalized “fraud” that impacted their accounts. Accepting those allegations as 
true, it is reasonable to infer that BANA’s records reflect the unauthorized nature 
of the reported transactions and that, if reviewed, those records would have 
resulted in different outcomes. Additionally, while the MCC’s allegations could be 
more detailed as to what specific information should have been reviewed, none of 
the allegations (including the correspondence from BANA to Plaintiffs) indicate 
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that BANA reviewed its own records in any meaningful way as required by 
§ 1693f. See Green, 557 F. Supp. 3d at 453 (finding that “because Capital One’s 
correspondence with Green shows no indication that its own records were 
reviewed (and it makes no other representations this regard), Green has plausibly 
alleged that it indeed failed to review this information”). Further, the allegations 
that Plaintiffs’ claims were denied within one to two days based on the results of 
an unreliable Claim Fraud Filter, and that BANA issued form letters lacking 
individualized information support the inference BANA didn’t conduct a 
reasonable review, including by not reviewing its own records. (See MCC ¶¶ 89, 
130, 140, 156, 164, 181, 188, 218). Taking all the allegations as true and drawing 
all inferences in favor of Plaintiffs, the MCC provides enough information to state 
a plausible claim that BANA didn’t review its records when conducting its 
investigation.4 Because the Court holds Plaintiffs state a plausible claim that 
BANA’s investigation was inadequate, it doesn’t need to consider whether the use 
of the Claim Fraud Filter alone constituted a violation of the EFTA. 
The MCC also states a plausible claim that BANA didn’t provide the results 
of its investigations of Plaintiffs’ claims. (MCC ¶ 536(h)). The EFTA provides that 
after a financial institution completes its investigation of a consumer’s reported 
error, the financial institution must “report or mail the results of such investigation 
and determination to the consumer within ten business days.” 15 U.S.C. 
§ 1693f(a).5 Numerous Plaintiffs allege they received brief letters informing them 
 
4 While it’s possible that BANA did review its records as part of its investigation, 
that information isn’t before the Court at this time. In deciding this motion to 
dismiss, the Court declines to speculate about what this potential evidence will 
show. 
5 See also 15 U.S.C. § 1693f(d) (“If the financial institution determines after its 
investigation . . . that an error did not occur, it shall deliver or mail to the consumer 
an explanation of its findings within 3 business days after the conclusion of its 
investigation, and upon request of the consumer promptly deliver or mail to the 
 
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only that their claim was closed or denied, (see, e.g., MCC ¶ 196 (Clara Cajas 
“received a letter from the Bank . . . informing her that her fraud claim related to 
the $700 ATM withdrawal had been closed”), while others allege they received 
letters containing very limited explanations, (see, e.g., id. ¶ 283 (Clare Blankship 
alleges the letter she received stated: “We’ve completed our review of the above 
referenced claim and have determined that no error has occurred in this instance. 
We now consider your claim resolved. [¶] What you need to know [¶] The 
transaction activity in question was authorized and posted correctly to your 
account.”)). Further, many individual Plaintiffs allege they didn’t receive any letter, 
(see, e.g., id. ¶ 293 (Courtney Alvarez)), permitting the inference the required 
letters weren’t sent. These allegations plausibly allege that Plaintiffs “got a 
‘determination’ but not ‘the results of [the required] investigation’ or the supporting 
documentation,” Gale v. Hyde Park Bank, 384 F.3d 451, 453 (7th Cir. 2004), and 
are sufficient to state a claim under the EFTA.  
BANA’s motion to dismiss the MCC’s EFTA claims for failure to allege facts 
showing a violation of that statute is DENIED.6  
3. 
Mootness 
BANA last moves to dismiss the EFTA claim of any Plaintiff that has been 
fully reimbursed for lack of Article III standing. (Dkt. 84-1 at 18–19). BANA 
challenges only injury in fact for the reimbursed Plaintiffs. (Id.). To establish injury 
in fact, a plaintiff must show she suffered “an invasion of a legally protected 
interest which is (a) concrete and particularized . . . and (b) actual or imminent, 
 
consumer reproductions of all documents which the financial institution relied on 
to conclude that such error did not occur. The financial institution shall include 
notice of the right to request reproductions with the explanation of its findings.”). 
6 Because the Court has already dismissed the EFTA claims of those Plaintiffs 
that allege reporting only an account freeze (and not fraud), the Court doesn’t 
need to consider BANA’s argument that account freezes aren’t prohibited by the 
EFTA. (See Dkt. 84-1 at 20).  
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not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal marks and 
citations omitted).  
Here, BANA has identified 59 Plaintiffs who have been fully reimbursed, 
including 20 of the 25 Class Plaintiffs. (See Dkt. 84-1, App’x Column 4). BANA 
argues those Plaintiffs lack a concrete injury sufficient for Article III standing. (Id. 
at 18–19). BANA also argues that any reimbursement payment that didn’t include 
interest nonetheless eliminates any § 1963f claim because, under § 1963g(a), a 
consumer can still be liable for up to $50 of a properly reported error, and the MCC 
doesn’t allege any Plaintiff claims more than $50 in interest. (Dkt. 92 at 11–12).  
BANA, however, fails to address the actual damages Plaintiffs suffered as 
a result of the delayed reimbursements. A financial institution that fails to comply 
with the EFTA is liable for “any actual damages sustained by a consumer as a 
result of such failure,” including the failure to properly resolve an error reported 
under § 1963f. 15 U.S.C. § 1963m(a)(1). Possible compliance failures include: 
(1) provisionally crediting a consumer pursuant to § 1963f(c) but failing to provide 
the consumer full use of the credited funds for the pendency of the investigation, 
§ 1963f(c); (2) provisionally crediting a consumer but failing to complete the 
investigation within the extended 45 day resolution period (including by rescinding 
a provisional credit and then issuing a reimbursement later), id.; or (3) reimbursing 
the consumer after the initial 10 business day resolution period expires without 
having issued a provisional credit, § 1963(a), (b).  
Of the Plaintiffs who received full reimbursements, all but one plausibly 
allege that BANA failed to comply with § 1963f’s procedures when issuing the 
reimbursement. (See, e.g., MCC ¶ 314 (James Bruno alleges that he reported an 
error in December 2020, but didn’t receive any credit until May 2021)). These 
Plaintiffs allege that, as a result of BANA’s failure to comply with § 1963f’s error 
resolution procedures, they sustained actual damages beyond the amount of the 
reported error. (See, e.g., MCC ¶ 299 (Shelia Anistik alleges that, due to BANA’s 
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failure to make provisionally credited funds available during the investigation, she 
had to sell her home after missing a $1,200 mortgage payment and was unable 
to pay her electric, gas, water, and cell phone bills). These alleged 
injuries—regardless of amount—constitute actual, concrete harms sufficient to 
support Article III standing. Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 464 
(2017) (“For standing purposes, a loss of even a small amount of money is 
ordinarily an ‘injury.’”); see, e.g., Sprint Commc’ns Co. v. APCC Servs., Inc., 554 
U.S. 269, 289 (2008) (noting that the loss of “a dollar or two” is sufficient to confer 
standing); Van v. LLR, Inc., 962 F.3d 1160, 1162 (9th Cir. 2020) (holding the loss 
of $3.76 in interest was sufficient to confer standing). BANA’s motion to dismiss 
the fully reimbursed Plaintiffs’ EFTA claims for lack of standing is DENIED except 
as to Misty Pointer. (MCC ¶ 461 (Pointer alleges she reported an unauthorized 
transaction to BANA on May 12, 2021, and that, on May 24, 2021 (less than ten 
business days later), BANA credited her account). BANA’s motion to dismiss 
Pointer’s EFTA claim for lack of standing is GRANTED, and that claim is 
DISMISSED WITH PREJUDICE.  
*     *     * 
BANA’s motion to dismiss the MCC’s EFTA claims is GRANTED IN PART 
and DENIED IN PART. The EFTA claims of the individual Plaintiffs identified 
above are DISMISSED WITH LEAVE TO AMEND.7  
B. 
California Consumer Privacy Act (Claim 2) 
The MCC’s third claim alleges BANA violated the California Consumer 
Privacy Act (“CCPA”), Cal. Civ. Code §§ 1798.100 et seq., by: (1) “issuing EDD 
Debit Cards to Plaintiffs and Class Members with magnetic stripes but without 
EMV chip technology”; (2) “collecting,” “transmitting,” and “storing” Plaintiffs’ 
 
7 For a summary of which Plaintiffs’ EFTA claims are dismissed, see Column 1 of 
the chart attached as Appendix A to this Order. 
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personal information in an inadequately secure manner; and (3) failing to ensure 
its subcontractors maintained the confidentiality of Plaintiffs’ personal information. 
(MCC ¶¶ 546–561).8 The CCPA creates a cause of action for: 
Any consumer whose nonencrypted and nonredacted 
personal information . . . is subject to an unauthorized 
access and exfiltration, theft, or disclosure as a result of the 
business’s violation of the duty to implement and maintain 
reasonable security procedures and practices appropriate 
to the nature of the information to protect the personal 
information. 
Cal. Civ. Code § 1798.150. BANA contests each of Plaintiffs’ theories in turn.  
First, it argues that the CCPA doesn’t impose a duty to issue debit cards 
with EMV chips. (Dkt. 84-1 at 29). “The CCPA does not ‘impose[]’ a new duty, but 
rather incorporates ‘existing law requir[ing] a business . . . to implement and 
maintain reasonable security procedures and practices appropriate to the nature 
of the information.’” (Id. (quoting S. Judiciary Comm. Rep. on A.B. 375 (June 25, 
2018), at 5 (citing Cal. Civ. Code § 1798.81.5(b), (e)) (emphasis added))). 
Because there is no existing duty for financial institutions to issue debit cards with 
EMV chips, BANA had no duty to issue EDD cards with chips. (Id. at 29–30). In 
response, Plaintiffs point to Dugas v. Starwood Hotels & Resorts Worldwide, Inc., 
No. 16-cv-14-GPC-BLM, 2016 WL 6523428 (S.D. Cal. Nov. 3, 2016).9 (Dkt. 90 
at 25–26). In Dugas, the court held the plaintiff “sufficiently alleged, at the pleading 
stage, a legal duty and a corresponding breach” based on the defendant’s alleged 
 
8 The CCPA claim is brought only by the Class Plaintiffs and the individual 
Plaintiffs in the Abarr, Alvarez, Brotman, Meza, Morrell, Payton, Robinson, Rojas 
de Charolet, Talia, and Verdun actions. (See MCC at 240).  
9 Although the claim in Dugas was brought under the California Customer Records 
Act (“CCRA”), Cal. Civ. Code §§ 1798.80 et seq., see Dugas, 2016 WL 6523428, 
at *10, its analysis is still applicable to claims under the CCPA because that 
statute’s private right of action arises from the CCRA. See § 1798.150(a)(1) (citing 
§ 1798.81.5 of the CCRA) (CCPA private right of action).  
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failure to use industry-standard encryption. 2016 WL 6523428, at *10–11.  
BANA attempts to distinguish Dugas, arguing that case “involved an alleged 
failure to maintain reasonable cybersecurity practices after the plaintiff provided 
personal identifying information to the defendant—it did not recognize any 
separate duty to issue chip cards.” (Dkt. 92 at 19). While BANA is technically 
correct that Dugas didn’t recognize a duty to issue debit cards with EMV chips, 
that argument largely misses the point. Plaintiffs cite Dugas to support the 
proposition that, at the pleading stage, allegations the defendant failed to utilize 
industry-standard encryption are sufficient to allege a legal duty and 
corresponding breach. (Dkt. 90 at 25–26); Dugas, 2016 WL 6523428, at *11.  
Here, the MCC alleges BANA acknowledges EMV chip technology is the 
industry-standard for debit card security. (See generally MCC ¶¶ 56–69 
(discussing BANA’s implementation of EMV chips)). Specifically, the MCC alleges 
that BANA’s website states 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.” (Id. ¶ 68). Despite BANA’s prior history with EMV chips, the 
EDD Debit Cards it issued included the much less secure magnetic stripes. (Id. 
¶ 69). As in Dugas, because Plaintiffs allege that BANA “failed to employ 
reasonable security measures to protect [their personal information], such as the 
utilization of industry-standard encryption[, such as EMV chips], the Court finds 
that Plaintiff[s] [have] sufficiently alleged a legal duty and a corresponding breach 
at this stage.” See Dugas, 2016 WL 6523428, at *11; see also In re Sony Gaming 
Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 966 
(S.D. Cal. 2014) (holding that plaintiffs adequately pled a breach of duty to provide 
reasonable security by alleging they gave personal information to Sony as part of 
commercial transaction and that Sony failed to employ reasonable security 
measures to protect the information, including failing to use industry-standard 
encryption). 
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Additionally, BANA argues that Plaintiffs “have not alleged facts to show that 
they suffered any ‘unauthorized access . . . as a result of’ the use of the magnetic 
strip [sic] cards.” (Dkt. 84-1 at 30 n.18). This argument ignores the MCC’s 
allegations that: (1) Plaintiffs’ cards were susceptible to skimming (a process by 
which a physical device collects information on a card’s magnetic stripe); (2) at 
least one Class Plaintiff alleges her card was skimmed; and (3) cards with EMV 
chips are less susceptible to this form of attack. (See MCC ¶ 61; see also, e.g., 
id. ¶ 187 (Lindsay McClure alleges her account was the subject of fraudulent 
charges after her EDD Debit Card was skimmed)). These alleged facts are 
sufficient to support the inference that Plaintiffs’ personal information was “subject 
to an unauthorized access and exfiltration, theft, or disclosure” as a result of the 
use of magnetic stripes. See Cal. Civ. Code § 1798.150(a)(1). BANA’s motion to 
dismiss Plaintiffs’ CCPA claim is DENIED to the extent that claim is based on 
BANA issuing debit cards without EMV chips. (See MCC ¶ 553(a)). 
Second, BANA argues that Plaintiffs’ theory that BANA violated the CCPA 
by “collecting,” “transmitting,” and “storing” Plaintiffs’ personal information in an 
inadequately secure manner lacks sufficient factual support to state a plausible 
claim. (Dkt. 84-1 at 29). The MCC alleges: “On information and belief, Bank of 
America collected, stored, and/or transmitted Plaintiffs’ and Class Members’ 
personal information in a nonencrypted and nonredacted form or in some other 
form that permitted unauthorized third parties to access that information in 
violation of the CCPA.” (MCC ¶ 511; see also id. ¶¶ 55–58). Plaintiffs point to 
Class Plaintiff Stephanie Smith’s allegation that her EDD benefits were 
fraudulently transferred from her account, even though she never used her debit 
card and kept it at home in a locked safe, arguing that allegation is sufficient to 
infer BANA “collect[ed],” “transmitt[ed],” and “stor[ed]” Plaintiffs’ personal 
information in an inadequately secure manner. (See Dkt. 90 at 27 (citing MCC 
¶¶ 58, 200)). The Court disagrees that these bare allegations are sufficient to state 
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a claim. While Smith’s allegations certainly suggest a possibility that inadequately 
secure collection, transmission, and storage may be the reason Smith’s data was 
stolen, they aren’t the only or even the most plausible inference supported by the 
allegations. See Iqbal, 556 U.S. at 678 (holding that the plausibility standard “asks 
for more than a sheer possibility that a defendant has acted unlawfully”); In re 
Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1108 (9th Cir. 2013) (“When 
faced with two possible explanations, only one of which can be true and only one 
of which results in liability, plaintiffs cannot offer allegations that are ‘merely 
consistent with’ their favored explanation but are also consistent with the 
alternative explanation. . . . Something more is needed, such as facts tending to 
exclude the possibility that the alternative explanation is true.”) (citation omitted). 
BANA’s motion to dismiss Plaintiffs’ CCPA claim is GRANTED to the extent that 
claim is based on BANA “collecting,” “transmitting,” and “storing” Plaintiffs’ 
personal information in an inadequately secure manner. (See MCC ¶ 553(b)–(d)).  
Third, BANA again argues that Plaintiffs’ theory that BANA violated the 
CCPA by failing to ensure its subcontractors maintained the confidentiality of 
Plaintiffs’ personal information lacks sufficient factual support to state a plausible 
claim. (Dkt. 84-1 at 29). In support of this theory, the MCC alleges that BANA:  
Fail[ed] to take reasonable steps to ensure that its 
subcontractors and their employees and agents, including 
[customer service representatives] and other Call Center 
agents, maintained the confidentiality of Cardholders’ 
personal information, including by failing to ensure that all 
such agents were subject to background checks before or 
after being hired and failing to provide such agents proper 
training and supervision regarding their handling and 
maintaining the confidentiality of Cardholders’ personal 
information, and by failing to secure Cardholders’ personal 
information from unnecessary and unauthorized access by 
subcontractors’ employees and others. 
(MCC ¶ 553(e); see also id. ¶ 55 (substantially the same)). The Court agrees that 
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these allegations are specific and concrete, and sufficient to state a claim. (Dkt. 90 
at 27). The allegations—particularly the allegation that BANA failed to ensure its 
agents were subjected to background checks—are sufficient to allege that BANA 
failed “to implement and maintain reasonable security procedures and practices.” 
Cal. Civ. Code § 1798.150; see also Dugas, 2016 WL 6523428, at *11. BANA’s 
motion to dismiss Plaintiffs’ CCPA claim is DENIED to the extent that claim is 
based on BANA’s failure to ensure its subcontractors maintained the 
confidentiality of Plaintiffs’ personal information.  
BANA also argues that the MCC fails to plead facts showing that the 
personal information at issue here was “nonencrypted or nonredacted,” a 
necessary condition for liability under the CCPA. See Cal. Civ. Code 
§ 1798.150(a)(1). However, the MCC alleges that the information contained on 
magnetic stripes is “easily readable” and that, after a successful skimming attack, 
recipients of the information can “use the information [from the magnetic stripe] to 
clone the consumer’s card, conduct unauthorized transactions, and access the 
bank account connected to the card.” (MCC ¶ 61). The allegation that at least one 
Class Plaintiff’s information was stolen and used following a skimming attack 
strongly supports an inference that Plaintiffs’ information was readable or useable 
immediately after a skimming attack. (See, e.g., id. ¶ 187). These allegations are 
sufficient to state a claim that Plaintiffs’ personal information was “nonencrypted 
or nonredacted.” See § 1798.150(a)(1). 
BANA’s motion to dismiss the MCC’s CCPA claim is GRANTED IN PART 
and DENIED IN PART. To the extent that claim is dismissed, it is DISMISSED 
WITH LEAVE TO AMEND. 
C. 
California Customer Records Act (Claim 3) 
The MCC’s third claim alleges BANA violated the California Customer 
Records Act (“CCRA”), Cal. Civ. Code §§ 1798.80 et seq., by failing to notify 
Plaintiffs when BANA suffered a data breach and that Plaintiffs’ unencrypted 
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personal data was obtained by unauthorized persons. (MCC ¶¶ 562–574).10 The 
CCRA provides, in relevant part: 
A person or business that conducts business in California, 
and that owns or licenses computerized data that includes 
personal information, shall disclose a breach of the security 
of the system following discovery or notification of the 
breach in the security of the data to a resident of California 
(1) whose unencrypted personal information was, or is 
reasonably believed to have been, acquired by an 
unauthorized person. . . . The disclosure shall be made in 
the 
most 
expedient 
time 
possible 
and 
without 
unreasonable delay. 
Cal. Civ. Code § 1798.82(a). The CCRA also describes the information that must 
be included in the notification and the form the notification must take. See 
§ 1798.82(d). 
The CCRA requires a business to notify customers only after the security of 
system containing a customer’s personal data is breached. See § 1798.82(a). 
Thus, to state a claim under the statute, a complaint must plausibly allege such a 
breach occurred. See In re Solara Med. Supplies, LLC Customer Data Sec. 
Breach Litig., 613 F. Supp. 3d 1284, 1300 (S.D. Cal. 2020) (collecting cases in 
which plaintiffs made specific allegations supporting the occurrence of a data 
breach). BANA argues that the MCC makes only conclusory and speculative 
allegations that a security breach occurred, and that such allegations are 
insufficient to state a claim under the CCRA. (Dkt. 84-1 at 30–31). As the Court 
found regarding Plaintiffs’ CCPA claim, the MCC states sufficient facts to 
adequately allege that Plaintiffs’ personal information was “subject to an 
unauthorized access and exfiltration, theft, or disclosure” as a result of the use of 
magnetic stripes. § 1798.150(a)(1). This is also sufficient to allege “a breach of 
 
10 The CCRA claim is brought only by the Class Plaintiffs and the individual 
Plaintiffs in the Abarr, Brotman, Meza, Morrell, Payton, and Robinson actions. 
(See MCC at 244).  
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the security of [a] system” that includes Plaintiffs’ personal data, as required under 
the CCRA. § 1798.82(a).  
However, the CCRA requires businesses to notify customers of a breach 
“without unreasonable delay” after the business “discover[s]” or is “notif[ied]” of 
the breach. See id. And the MCC doesn’t contain any facts alleging when BANA 
“discover[ed]” or was “notif[ied]” of the alleged data breach. See id. Without 
alleging when the alleged breach occurred or when BANA learned of it, the MCC 
doesn’t adequately allege that BANA “unreasonably delay[ed]” in notifying 
Plaintiffs. See id.; In re Yahoo! Inc. Customer Data Sec. Breach Litig., No. 16-md-
2752-LHK, 2017 WL 3727318, at *38 (N.D. Cal. Aug. 30, 2017) (“[A]bsent any 
allegations in the [complaint] suggesting when Defendants learned of the 2013 
breach, Plaintiffs have not adequately alleged that Defendants ‘unreasonably 
delay[ed]’ in notifying Plaintiffs of the 2013 Breach.”). Plaintiffs argue reliance on 
Yahoo! is misplaced because here, unlike in Yahoo!, the MCC alleges that 
BANA’s agents were responsible for the breach and therefore, BANA should have 
known the breach occurred. (Dkt. 90 at 27–28). Even assuming that’s true, the 
MCC doesn’t allege when the breach occurred, so it fails to adequately allege 
BANA “unreasonably delay[ed]” in notifying Plaintiffs. See § 1798.82(a). 
BANA’s motion to dismiss the MCC’s CCRA claim is GRANTED, and that 
claim is DISMISSED WITH LEAVE TO AMEND. 
D. 
California’s Unfair Competition Law (Claim 4) 
The MCC’s fourth claim alleges BANA violated California’s Unfair 
Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq. (MCC 
¶¶ 575–584).11 The UCL is a consumer protection statute that broadly prohibits 
“any unlawful, unfair or fraudulent business act or practice.” § 17200. “Each of 
 
11 The UCL claim is brought only by the Class Plaintiffs and the individual Plaintiffs 
in the Abarr, Alvarez, Brotman, Meza, Morrell, Payton, Robinson, Rojas de 
Charolet, Talia, and Verdun actions. (See MCC at 246).  
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these three adjectives captures ‘a separate and distinct theory of liability.’” Rubio 
v. Cap. One Bank, 613 F.3d 1195, 1203 (9th Cir. 2010) (quoting Kearns v. Ford 
Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009)). The MCC alleges that BANA is 
liable under the UCL for both “unfair” and “unlawful” conduct, (see MCC ¶¶ 577, 
579), and seeks “restitution, disgorgement, and other equitable relief, including 
injunctive relief,” (id. ¶ 584). BANA argues Plaintiffs’ UCL claim should be 
dismissed for multiple reasons, including for failing to establish the inadequacy of 
legal remedies. (Dkt. 84-1 at 31–32).  
A plaintiff “must establish that she lacks an adequate remedy at law before 
securing equitable restitution for past harm under the UCL.” Sonner v. Premier 
Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020); see also Korea Supply Co. v. 
Lockheed Martin Corp., 29 Cal. 4th 1134, 1144 (2003) (citing Bank of the W. v. 
Superior Ct., 2 Cal. 4th 1254, 1266 (1992)) (“A UCL action is equitable in nature; 
damages cannot be recovered.”); Mort v. United States, 86 F.3d 890, 892 (9th Cir. 
1996) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)) 
(“It is a basic doctrine of equity jurisprudence that courts of equity should not 
act . . . when the moving party has an adequate remedy at law.”) (ellipsis in 
original); see also, e.g., Schroeder v. United States, 569 F.3d 956, 963 (9th Cir. 
2009) (“[E]quitable relief is not appropriate where an adequate remedy exists at 
law.”). 
Plaintiffs oppose the application of Sonner to their UCL claims, arguing that 
the argument is premature and that the Court should permit them to plead a UCL 
claim in the alternative because this case is in a different procedural posture from 
Sonner. (Dkt. 90 at 43 (citing Edleson v. Travel Insured Int’l, Inc., No. 21-cv-323-
WQH-AGS, 2021 WL 4334075, at *6 (S.D. Cal. Sept. 23, 2021) (“[N]o controlling 
authority prevents a plaintiff from asserting alternative legal remedies at the 
pleading stage.”))). But Sonner’s holding applies regardless of a case’s procedural 
posture. See Rivera v. Jeld-Wen, Inc., No. 21-cv-1816-AJB-AHG, 2022 WL 
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3702934, at *12 (S.D. Cal. Feb. 4, 2022) (collecting cases rejecting arguments 
distinguishing Sonner based on procedural posture); see also Lisner v. Sparc Grp. 
LLC, No. 21-cv-5713-AB-GJS, 2021 WL 6284158, at *8 (C.D. Cal. Dec. 29, 2021) 
(collecting cases and holding that “Sonner’s reasoning applies at the pleading 
stage”). But see Edleson v. Travel Insured Int’l, Inc., 2021 WL 4334075, at *6. 
And, under Sonner, “[t]he issue is not whether a pleading may seek distinct forms 
of relief in the alternative, but rather whether a prayer for equitable relief states a 
claim if the pleading does not demonstrate the inadequacy of a legal remedy. On 
that point, Sonner holds that it does not.” Sharma v. Volkswagen AG, 524 F. Supp. 
3d 891, 907 (N.D. Cal. 2021) (citing Sonner, 971 F.3d at 844).  
Here, the MCC pleads claims for equitable relief under the UCL but doesn’t 
allege inadequate legal remedies. (MCC ¶¶ 575–584). The MCC therefore fails to 
state a UCL claim under Sonner. Accord Sharma, 524 F. Supp. 3d at 907. BANA’s 
motion to dismiss the MCC’s UCL claim is GRANTED and that claim is 
DISMISSED WITH PREJUDICE. 
E. 
Negligence (Claims 5 & 6)  
The MCC’s fifth claim alleges BANA breached its duty of care to Plaintiffs 
by failing to: (1) maintain the security of their personal and account information; 
(2) issue EDD Debit Cards with EMV chips; (3) employ reasonable fraud 
prevention and notification practices; (4) provide effective customer service; 
(5) process and investigate claims in a timely manner; and (6) provide provisional 
credits while investigating fraud claims. (MCC ¶¶ 585–593). The MCC’s sixth 
claim alleges BANA was negligent in its hiring, supervision, and retention of its 
subcontractors. (MCC ¶¶ 594–600).12 
 
12 The negligence claim is brought only by the Class Plaintiffs and the individual 
Plaintiffs in the Abarr, Alvarez, Brotman, Meza, Morrell, Payton, Robinson, Rojas 
de Charolet, Talia, and Verdun actions. (See MCC at 252). The negligent hiring, 
 
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Under California law, the elements of a negligence claim are (1) duty, 
(2) breach, (3) causation, and (4) injury. Vasilenko v. Grace Family Church, 3 Cal. 
5th 1077, 1083 (2017). BANA argues Plaintiffs’ claims are barred by the economic 
loss doctrine. (Dkt. 84-1 at 24–25). BANA also argues that the MCC fails to allege 
facts sufficient to establish the duty and causation elements of a negligence claim. 
(Id. at 25–27).  
1. 
Economic Loss Doctrine & Duty 
BANA first argues that the economic loss doctrine bars Plaintiffs’ claims. (Id. 
at 24–25). “In California, the ‘general rule’ is that people owe a duty of care to 
avoid causing harm to others and that they are thus usually liable for injuries their 
negligence inflicts.” S. Cal. Gas Leak Cases, 7 Cal. 5th 391, 398 (2019). However, 
“[i]n the absence of personal injury, physical damage to property, a special 
relationship between the parties, or some other common law exception to the rule, 
recovery of purely economic loss for negligence is foreclosed.” Stasi v. Inmediata 
Health Grp. Corp., 501 F. Supp. 3d 898, 913 (S.D. Cal. 2020) (citing J’Aire Corp. 
v. Gregory, 24 Cal. 3d 799, 803–04 (1979)); S. Cal. Gas, 7 Cal. 5th at 400 
(“[L]iability in negligence for purely economic losses . . . is ‘the exception, not the 
rule.’”). Plaintiffs argue their negligence claims aren’t barred because: (i) they 
allege non-economic injuries; (ii) the independent duty exception applies; and 
(iii) the “special relationship” exception applies. (Dkt. 90 at 29–33). 
i. 
Non-Economic Injury 
Plaintiffs first argue that the economic loss doctrine doesn’t apply here 
because the MCC adequately alleges non-economic injuries, “including the denial 
of access to necessary information and wasted time caused by grossly 
inadequate customer service.” (Dkt. 90 at 29; see also, e.g., MCC ¶¶ 140, 158, 
 
supervision, and retention claim is brought only by the Class Plaintiffs and the 
individual Plaintiffs in the Alvarez, Rojas de Charolet, and Verdun actions. (See 
MCC at 255).  
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166, 218, 240, 283–84 (alleging BANA failed to respond to requests for 
information); 117–26, 133, 141, 145–50, 179–84, 198, 209–13, 221–23, 251 
(alleging extremely long phone wait times and inadequate customer service)).  
For the most part, district courts in California have treated time lost 
responding to a data breach as a purely economic injury for which recovery is 
barred by the economic loss doctrine, including when the breach exposed 
personal financial information, such as credit card numbers. See, e.g., Dugas, 
2016 WL 6523428, at *12 (finding unauthorized credit card transactions, “theft of 
[the plaintiff’s] credit card information, costs associated with prevention of identity 
theft, and costs associated with time spent and loss of productivity” were purely 
economic injuries); Gardiner v. Walmart Inc., No. 20-CV-04618-JSW, 2021 WL 
2520103, at *8 (N.D. Cal. Mar. 5, 2021) (finding time lost responding to a data 
breach that exposed the plaintiff’s personal information was a purely economic 
injury). However, some courts have treated lost time as a non-economic injury 
when the data breach exposes medical information or leads to an increase in 
spam or phishing attempts. See, e.g., Stasi, 501 F. Supp. 3d at 913 (distinguishing 
Dugas and finding lost time a non-economic injury when the data breach exposed 
medical information and increased spam/phishing attempts); In re Solara, 613 F. 
Supp. 3d at 1294–95 (same); Bass v. Facebook, Inc., 394 F. Supp. 3d 1024, 1039 
(N.D. Cal. 2019) (finding time lost responding to spam emails following a breach 
that disclosed non-financial personal information was a non-economic injury).  
The situation here is closest to the facts in Dugas, 2016 WL 6523428. There, 
the plaintiff alleged his credit card number and other personal information was 
obtained by an unknown third party in a data breach and “used for unauthorized 
purchases, exposing him to losses, frustration and on-going requirements to 
protect himself from identity theft.” Id. at *1. The court found those loses were 
purely economic injuries and that recovery under a negligence theory was barred 
by the economic loss doctrine. Id. at *12. Here, the MCC alleges Plaintiffs’ account 
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and personal information was obtained by unknown third parties and used for 
unauthorized transactions, forcing them to spend significant time responding to 
the breach. (See, e.g., MCC ¶¶ 117–26, 133, 141, 145–50, 179–84, 198, 209–13, 
221–23, 251). It also alleges BANA denied them access to information. (See, e.g., 
id. ¶¶ 140, 158, 166, 218, 240, 283–84). As in Dugas, the loss of money through 
fraudulent transactions and time due to responding to the breach are purely 
economic injuries. See Dugas, 2016 WL 6523428, at *12. Therefore, the Court 
holds the MCC doesn’t allege non-economic injuries sufficient to overcome the 
economic loss doctrine. 
ii. 
Independent Duty 
Plaintiffs next argue the economic loss doctrine doesn’t apply because the 
“independent duty exception” applies to their claims. (Dkt. 90 at 29–30). “The 
independent duty exception to the economic loss rule applies where the 
defendant’s conduct ‘violates a duty independent of the contract arising from 
principles of tort law.’” R Power Biofuels, LLC v. Chemex LLC, No. 16-cv-716-
LHK, 2016 WL 6663002, at *10 (N.D. Cal. Nov. 11, 2016) (quoting Erlich v. 
Menezes, 21 Cal. 4th 543, 551 (1999)). But, “[a]s the California Supreme Court 
has explained, the exception ‘focus[es] on intentional conduct.’” In re Zoom Video 
Commc’ns Inc. Priv. Litig., 525 F. Supp. 3d 1017, 1040 (N.D. Cal. 2021) (quoting 
Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 990 (2004)) (second 
alteration in original). Plaintiffs’ negligence claims aren’t based on intentional 
misconduct. Therefore, the independent duty exception doesn’t overcome the 
economic loss doctrine. See also NuCal Foods, Inc. v. Quality Egg LLC, 918 F. 
Supp. 2d 1023, 1030 (E.D. Cal. 2013) (rejecting application of independent duty 
exception to negligence claim).  
// 
// 
// 
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iii. 
Special Relationship 
Plaintiffs last argue the economic loss doctrine doesn’t apply because the 
“special relationship exception” applies. (Dkt. 90 at 30–33). “The primary 
exception to the general rule of no-recovery for negligently inflicted purely 
economic losses is where the plaintiff and the defendant have a ‘special 
relationship.’” S. Cal. Gas, 7 Cal. 5th at 400. Courts consider six factors to 
determine whether a special relationship exists: 
(i) “the extent to which the transaction was intended to 
affect the plaintiff,” . . . (ii) “the foreseeability of harm to the 
plaintiff,” (iii) “the degree of certainty that the plaintiff 
suffered injury,” (iv) “the closeness of the connection 
between the defendant’s conduct and the injury suffered,” 
(v) “the moral blame attached to the defendant’s conduct,” 
and (vi) “the policy of preventing future harm.” 
Id. at 401 (quoting J’Aire Corp. v. Gregory, 24 Cal. 3d 799, 804 (1979)); see also 
Rowland v. Christian, 69 Cal. 2d 108, 113 (1968) (articulating an earlier version 
of the factors). “[T]he inquiry hinges not on mere rote application of these . . . 
factors, but instead on a comprehensive look at the . . . sum total of the policy 
considerations at play in the context before [the court].” S. Cal. Gas, 7 Cal. 5th 
at 399 (internal quotation marks omitted). If a plaintiff demonstrates a special 
relationship under the Rowland factors, such a showing is sufficient to both 
overcome the economic loss doctrine and show the defendant owed the plaintiff 
a duty of care. See, e.g., Castillo v. Seagate Tech., LLC, No. 16-cv-1958-RS, 
2016 WL 9280242, at *3 (N.D. Cal. Sept. 14, 2016) (applying Rowland factors to 
determine whether Defendants owed Plaintiffs a duty of care in a negligence 
action); Fabian v. LeMahieu, No. 19-cv-54-YGR, 2019 WL 4918431, at *12 
(N.D. Cal. Oct. 4, 2019) (same).  
Applying the special relationship factors here counsels in favor of finding 
BANA owed Plaintiffs a duty of care. The first factor is “the extent to which the 
transaction was intended to affect the plaintiff.” J’Aire, 24 Cal. 3d at 804. BANA 
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was the exclusive provider of electronic benefits payments for EDD, (MCC ¶ 39), 
and Plaintiffs had to provide BANA their personal information to receive benefits 
payments, (id. ¶¶ 46–47). This is sufficient to satisfy the first factor. Huynh v. 
Quora, Inc., 508 F. Supp. 3d 633, 655 (N.D. Cal. 2020) (collecting cases finding 
that “the first factor is met when plaintiffs share personal data with a company with 
the understanding that the company will protect that data”).  
The second factor is “the foreseeability of harm to the plaintiff.” J’Aire, 24 
Cal. 3d at 804. Courts “determine foreseeability not by reference to specific parties 
but instead based on the general sort of conduct at issue.” S. Cal. Gas, 7 Cal. 5th 
at 401 n.5. The MCC alleges BANA failed to use appropriate security procedures 
to protect Plaintiffs’ account and personal information, including by failing to issue 
EDD Debit Cards with EMV chips. (See generally MCC ¶¶ 59–69 (discussing 
EMV chips)). Because it was foreseeable Plaintiffs would be subject to fraud if 
BANA didn’t adequately protect their account information, see, e.g., Huynh, 508 
F. Supp. 3d at 657 (finding it foreseeable that the plaintiff would suffer injury if the 
defendant failed to adequately protect the plaintiff’s personal information); In re 
Yahoo!, 313 F. Supp. 3d at 1132 (same); Terpin v. AT&T Mobility, LLC, 399 F. 
Supp. 3d 1035, 1120, 1049 (C.D. Cal. 2019) (same), this factor is also met. 
The third factor is “the degree of certainty that the plaintiff suffered injury” 
and the fourth factor is “the closeness of the connection between the defendant’s 
conduct and the injury suffered”. J’Aire, 24 Cal. 3d at 804. The MCC alleges 
Plaintiffs were injured by the theft of their EDD benefits and their injuries were 
made possible by BANA’s alleged failure to protect their account information. 
(MCC ¶¶ 4, 591–92). Those allegations are sufficient to satisfy these factors. See 
Corona v. Sony Pictures Ent., Inc., No. 14-cv-9600-RGK-EX, 2015 WL 3916744, 
at *3, *5 (C.D. Cal. June 15, 2015) (finding third factor satisfied by “inability to use 
credit and assets frozen” due to fraud); Huynh, 508 F. Supp. 3d at 657–58 (finding 
fourth factor satisfied by allegations injury stemmed from the defendant’s failure 
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to protect personal information).  
The fifth factor is “the moral blame attached to the defendant’s conduct.” 
J’Aire, 24 Cal. 3d at 804. The MCC alleges that BANA issued EDD Debit Cards 
without EMV chips that were vulnerable to skimming and other forms of attack at 
the same time it was issuing normal consumer debits card with EMV chips. (See 
generally MCC ¶¶ 59–69 (discussing EMV chips)). In other words, the MCC 
alleges that BANA issued Plaintiffs—recipients of public benefits—less secure 
cards than its paying customers. Although Plaintiffs don’t impute an economic 
incentive to BANA for this, the disparity in treatment is sufficient to satisfy the fifth 
factor. AFL v. EDD, 88 Cal. App. 3d 811, 821 (1979) (noting that unemployment 
benefits are made available to newly unemployed workers to allow them to survive 
at a subsistence level). 
The sixth factor is “the policy of preventing future harm.” J’Aire, 24 Cal. 3d 
at 804. The Court agrees with Plaintiffs that imposing liability for the alleged 
negligence would encourage companies facing similar circumstances in the future 
to act more carefully. (See Dkt. 90 at 32); Huynh, 508 F. Supp. 3d at 658 (finding 
sixth factor satisfied when imposing liability would encourage similar companies 
to better safeguard consumers’ personal information); In re Sony Gaming, 996 F. 
Supp. 2d at 972 (finding that “imposing liability might influence other businesses 
to take the necessary precautions”). 
BANA responds to only a few of Plaintiffs’ arguments regarding the Rowland 
factors, instead primarily arguing that Plaintiffs’ “special relationship” argument 
rests on the mistaken premise that BANA-issued debit cards were the only way to 
obtain EDD benefits. (Dkt. 92 at 15–16). BANA has held the exclusive contractual 
right to provide electronic benefits payments for EDD since 2010, (MCC ¶ 39), 
and the MCC plausibly alleges that EDD presented BANA debit cards as the 
“exclusive means” to receive EDD benefits, (see id. ¶ 47 (“EDD Debit Cards are 
the default payment method for EDD benefits, and EDD’s website presents EDD 
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Debit Cards as the exclusive means of receiving EDD benefits.”)). Accepting 
these allegations as true, the MCC plausibly alleges that Plaintiff had to provide 
BANA their personal information in order to obtain EDD benefits. This is sufficient 
to permit the application of the special relationship factors. See Corona, 2015 WL 
3916744, at *5 (applying special relationship factors when Plaintiffs alleged having 
to provide their personal information to receive employment benefits).  
BANA also argues that, as a bank, it doesn’t owe Plaintiffs any duty of care 
and that it doesn’t have a “special relationship” with Plaintiffs, its depositors. (See 
Dkt. 84-1 at 25; Dkt. 92 at 15–16). BANA cites to cases supporting the proposition 
that “the bank-depositor relationship is not a ‘special relationship.’” (See, e.g., 
Dkt. 84-1 (quoting Belluomini v. Citigroup, Inc., No. CV 13-01743 CRB, 2013 WL 
3855589, at *5 (N.D. Cal. July 24, 2013)). But that conclusion is qualified, with 
courts noting that the bank-depositor relationship isn’t a “special relationship” 
under ordinary circumstances. Copesky v. Superior Ct., 229 Cal. App. 3d 678, 
694 (1991) (“It is thus our conclusion that banks, in general and in this case, are 
not fiduciaries for their depositors; and that the bank-depositor relationship is not 
a ‘special relationship’ . . . such as to give rise to tort damages.”) (emphasis 
added); Lawrence v. Bank of America, 163 Cal. App. 3d 431, 437 (1985) (“[U]nder 
ordinary circumstances the relationship between a bank and its depositor is that 
of debtor-creditor, and is not a fiduciary one.”) (emphasis added). BANA’s 
relationship with Plaintiffs is clearly not an “ordinary” banking relationship. 
Plaintiffs aren’t typical depositors because their only relationship with BANA is for 
the purpose of facilitating the receipt of public benefits. And BANA isn’t operating 
as a normal bank because it is distributing public benefit funds, as opposed to 
holding funds deposited by Plaintiffs.  
Having balanced the Rowland factors, the Court holds they weigh in favor 
of finding a special relationship between BANA and Plaintiffs. Accordingly, the 
Court holds the economic loss doctrine doesn’t bar Plaintiffs’ claims. Further, the 
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Court holds that Plaintiffs have sufficiently alleged that BANA owed Plaintiffs a 
duty to exercise reasonable care with respect to their administration of EDD 
benefits.  
*     *     * 
BANA’s motion to dismiss the MCC’s negligence claims as barred by the 
economic loss doctrine or for failure to allege a duty is DENIED.  
2. 
Causation 
BANA argues the MCC fails to adequately allege causation for Plaintiffs’ 
negligence claim, (MCC ¶¶ 585–593), and negligent hiring, supervision, and 
retention claim, (id. ¶¶ 594–600). (Dkt. 84-1 at 26–27). 
i. 
Negligence 
With respect to the negligence claim, BANA contends that the MCC’s 
allegations are too speculative to support an inference that the lack of EMV chips 
caused Plaintiffs’ injuries. (Dkt. 84-1 at 26). Specifically, BANA argues that the 
allegations that some Plaintiffs experienced fraud after using their cards and that 
one Plaintiff believes her card was skimmed are insufficient the state a claim. (Id.; 
Dkt. 92 at 17). The MCC alleges that the EDD Debit Cards were more susceptible 
to skimming attacks than cards with EMV chips. (See MCC ¶ 61); supra Section 
III.B. Plaintiffs also allege that Lindsay McClure’s EDD Debit Card was skimmed 
when she used it at a gas station on December 1, 2020. (Id. ¶ 187). These facts 
are sufficient to plausibly allege McClure’s injuries occurred due to the lack of 
EMV chips, which in turn supports an inference that other Plaintiffs were also 
injured by the lack of chips. Additional facts about the prevalence of skimming 
attacks and other alleged security failures are likely in BANA’s possession. See 
Flores-Mendez v. Zoosk, Inc., No. C 20-4929 WHA, 2021 WL 308543, at *4 
(N.D. Cal. Jan. 30, 2021) (finding causation allegations sufficient to survive a 
motion to dismiss when the complaint alleged a data breach occurred and 
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additional information about security system was likely held by the defendant).13 
BANA also argues that the MCC’s allegations don’t plausibly allege BANA’s 
conduct caused Plaintiffs’ injuries because the MCC doesn’t rule out other 
possible causes, including security breaches at EDD. (Dkt. 92 at 25 (citing MCC 
¶ 62)). BANA argues Plaintiffs’ negligence claim must be dismissed because 
Plaintiffs fail to allege facts “tending to exclude the possibility that [an] alternative 
explanation is true.” (Id. (quoting In re Century Aluminum, 729 F.3d at 1108)). The 
MCC’s allegations about skimming are sufficient to satisfy that standard. (See 
MCC ¶ 187). Accepting those allegations as true tends to exclude the possibility 
that a separate data breach was a more likely cause of Plaintiffs’ injuries than the 
lack of EMV chips. See In re Century Aluminum, 729 F.3d at 1108; Starr v. Baca, 
652 F.3d 1202, 1216 (9th Cir. 2011) (“If there are two alternative explanations, 
one advanced by defendant and the other advanced by plaintiff, both of which are 
plausible, plaintiff’s complaint survives a motion to dismiss under Rule 12(b)(6).”). 
With respect to the MCC’s negligence per se theories, BANA argues that 
Plaintiffs fail to allege sufficient facts to support an inference BANA violated any 
of the four statutes cited in the MCC. (Dkt. 84-1 at 25–26).14 Plaintiffs’ negligence 
 
13 See also Flores-Mendez, 2021 WL 308543, at *4 (“[V]irtually all of the details 
that defendants insist on are in possession of the defendants, and not in 
possession of plaintiff. It is unreasonable for defendant to insist that the details be 
laid out in the initial complaint. The common law doctrine of res ipsa loquitur has 
some application here. The consuming public has come to believe that the internet 
companies, which take in their private information, have taken adequate security 
steps to protect the security of that information from any and all hackers or 
interventions. The ordinary consumer, however, has no clue what internet 
companies’ security steps are. There would be no way for users to know what 
security steps were actually in place. Therefore, when a breach occurs, the thing 
speaks for itself. The breach would not have occurred but for inadequate security 
measures, or so it can be reasonably inferred at the pleadings stage.”). 
14 BANA also argues negligence per se doesn’t support an independent cause of 
action absent a viable negligence claim. (Dkt. 84-1 at 25). BANA is correct, but 
 
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per se theories are based on alleged violations of: the Gramm-Leach-Bliley Act, 
15 U.S.C. §§ 6801 et seq.; the California Financial Information Privacy Act, Cal. 
Fin. Code §§ 4050 et seq.; the California Consumer Privacy Act, Cal. Civ. Code 
§§ 1798.100 et seq.; and the California Consumer Records Act, id. §§ 1798.80 et 
seq. (MCC ¶ 589). To allege a violation of the Gramm-Leach-Bliley Act (“GLBA”), 
a complaint must allege a bank failed to satisfy certain regulatory requirements 
regarding the way information is stored and transmitted. See 15 U.S.C. § 6801; 
16 C.F.R. §§ 314.3, 314.4. The MCC makes only conclusory allegations about 
how BANA stored and transmitted Plaintiffs’ personal information. (See MCC 
¶¶ 55–58, 580–81, 589–90). These allegations are insufficient to allege BANA 
violated the GLBA. To allege a violation of the California Financial Information 
Privacy Act (“CFIPA”), a complaint must allege a bank disclosed or shared a 
consumer’s nonpublic personal information with an unauthorized third party. Cal. 
Fin. Code §§ 4052–4052.5, 4057. The MCC’s only allegations of such disclosures 
are entirely conclusory and don’t adequately state a claim under the CFIPA. (See 
MCC ¶¶ 582, 589–90). As for the California Customer Records Act (“CCRA”), the 
Court has already found the MCC fails to state a claim under the statute. See infra 
Section III.C. And the Court has already found the MCC adequately states a claim 
under the California Consumer Privacy Act (“CCPA”). See infra Section III.B. 
BANA’s motion to dismiss the MCC’s negligence claim for failing to 
adequately allege causation is GRANTED IN PART and DENIED IN PART. The 
claim is DISMISSED WITH LEAVE TO AMEND to the extent it relies on 
allegations that BANA violated the GLBA, CFIPA, or CCRA.  
 
that conclusion has no effect here because, for the reasons discussed above, 
Plaintiffs plead a viable negligence claim and, therefore don’t assert an 
independent negligence per se claim. See California v. Kinder Morgan Energy 
Partners, L.P., 569 F. Supp. 2d 1073, 1087 (S.D. Cal. 2008) (“[N]egligence per se 
is merely an evidentiary doctrine and not an independent cause of action.”). 
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ii. 
Negligent Hiring, Supervision, & Retention 
With respect to the MCC’s negligent hiring claim, BANA argues Plaintiffs 
make only speculative claims that BANA’s contractors committed a series of 
internal data breaches without the support of any concrete allegations. (Dkt. 84-1 
at 26–27). The MCC alleges that BANA, acting through its agent TTEC Holdings, 
Inc. (“TTEC”), “hired hundreds if not thousands of employees en masse to perform 
services for [BANA] without ever conducting a background check on these 
individuals” who were subsequently given access to Plaintiffs’ personal and 
account information. (MCC ¶¶ 596 (emphasis in original); 55 (substantially the 
same)). Plaintiffs further allege the lack of background checks “harmed and 
continues to harm Plaintiffs and Class Members by subjecting them to 
unreasonable risk of fraud and exfiltration of their Cardholder Information and 
enabled a series of internal data breaches committed by TTEC employees within 
the scope of their employment.” (Id. ¶ 598). While the MCC could be more detailed 
as to how the lack of background checks caused Plaintiffs’ injuries, at the pleading 
stage, these allegations are sufficient to support the inference that data breaches 
“likely occurred due to problems with [BANA’s] cybersecurity practices and 
procedures.” Top Trade v. Grocery Outlet, No. 2:17-cv-8467-SVW-MRW, 2018 
WL 6038297, at *4 (C.D. Cal. May 9, 2018). 
BANA’s motion to dismiss the MCC’s negligent hiring, supervision, and 
retention claim is DENIED.  
iii. 
Standing to Pursue Injunctive Relief 
BANA also argues that Plaintiffs lack standing to seek injunctive relief based 
on their negligence claim because they allege only a conjectural and hypothetical 
future harm (Dkt. 84-1 at 27). To establish Article III standing, a plaintiff must 
show: (1) injury in fact; (2) causation; and (3) redressability. Lujan, 504 U.S. 
at 560–61. “An injury sufficient to satisfy Article III must be ‘concrete and 
particularized’ and ‘actual or imminent, not “conjectural” or “hypothetical.”’” Susan 
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B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (quoting Lujan, 504 U.S. 
at 560). “An allegation of future injury may suffice if the threatened injury is 
‘certainly impending,’ or there is a ‘“substantial risk” that the harm will occur.’” Id. 
(quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)).  
Allegations that a plaintiff faces a continued threat of future harm stemming 
from the prior theft of personal information can constitute injury in fact sufficient to 
confer standing. See In re Adobe Sys., Inc. Priv. Litig., 66 F. Supp. 3d 1197, 1216 
(N.D. Cal. 2014) (finding “increased risk of future harm” from theft of personal 
injury sufficient for Article III standing when Plaintiffs allege their “stolen data ha[d] 
already been misused”); see also Krottner v. Starbucks Corp., 628 F.3d 1139, 
1143 (9th Cir. 2010) (finding employees alleged “a credible threat of real and 
immediate harm stemming from the theft of a laptop containing their unencrypted 
personal data”). Other circuits have held the threat of future unauthorized 
transactions is sufficient to show Article III standing when the complaint alleges 
the theft of card information has already resulted in unauthorized transactions. 
See, e.g., Lewert v. P.F. Chang’s China Bistro, Inc., 819 F.3d 963, 965, 967 
(7th Cir. 2016) (finding the theft of card information created an “increased risk of 
fraudulent charges and identity theft” sufficient to confer standing when one 
named plaintiff alleged unauthorized charges); Remijas v. Neiman Marcus Grp., 
LLC, 794 F.3d 688, 690, 693 (7th Cir. 2015) (finding allegations of theft of credit 
card information and fraudulent charges sufficient to support inference of 
“substantial risk of harm” that conferred class standing).  
Here, the MCC alleges Plaintiffs’ account and personal information has 
been stolen and that Plaintiffs have already experienced unauthorized 
transactions. (See, e.g., MCC ¶ 137). Additionally, the MCC alleges that most 
Plaintiffs continue to receive EDD benefits from BANA, (see, e.g., id. ¶ 143), and 
that Plaintiffs continue to experience unauthorized transactions, (see id. ¶ 113). 
These allegations are sufficient to allege a “substantial risk” that Plaintiffs will 
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suffer future harm stemming from the data breach, which is sufficient to establish 
Article III standing to seek injunctive relief. See, e.g., In re Adobe, 66 F. Supp. 3d 
at 1216.  
BANA’s motion to dismiss the MCC negligence claims to the extent they 
seek prospective injunctive relief is DENIED.  
F. 
Contract (Claim 7) 
The MCC’s seventh claim alleges BANA breached its contract with Plaintiffs 
by: (1) violating the contract’s claims investigation, reimbursement, and error 
resolution provisions; (2) freezing or blocking Plaintiffs’ accounts; or (3) failing to 
make funds available when instructed to do so by EDD. (MCC ¶¶ 603–10).15 
BANA moves to dismiss Plaintiffs’ direct contract claims in their entirety. (Dkt. 84-1 
at 7–14). To state a claim for breach of contract under California law, a complaint 
must plead sufficient facts to plausibly demonstrate “(1) the existence of the 
contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s 
breach, and (4) the resulting damages to the plaintiff.” Oasis W. Realty, LLC v. 
Goldman, 51 Cal. 4th 811, 820 (2011). Here, the parties don’t dispute the 
existence of a contract. (MCC ¶¶ 70–73).  
Under California law, “[t]he interpretation of a written instrument, even 
though it involves what might properly be called questions of fact, is essentially a 
judicial function.” Parsons v. Bristol Dev. Co., 62 Cal. 2d 861, 865 (1965) (citation 
omitted). Similarly, “[t]he determination of whether a written contract is ambiguous 
is a question of law for the court.” Han v. Mobil Oil Corp., 73 F.3d 872, 877 (9th Cir. 
1995). A contract provision is considered ambiguous when it is capable of two or 
more reasonable constructions. MacKinnon v. Truck Ins. Exch., 31 Cal. 4th 635, 
648 (2003) (quoting Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 18 (1995)). “But 
 
15 The contract claim is brought only by the Class Plaintiffs and the individual 
Plaintiffs in the Abarr, Brotman, Meza, Morrell, Payton, Robinson, and Talia 
actions. (See MCC at 257).  
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language in a contract must be interpreted as a whole, and in the circumstances 
of the case, and cannot be found to be ambiguous in the abstract.” Id. 
The Court first considers which contract forms the basis of Plaintiffs’ contract 
claims before turning to the merits of those claims.  
1. 
Governing Account Agreement 
First the Court must determine which account agreement should be 
considered when analyzing the MCC’s contract claim. BANA requests the Court 
take judicial notice of one version, (see Dkt. 84-3, Chestnut Decl., Ex. 1), and 
Plaintiffs request the Court take judicial notice of another, (see Dkt. 90-3, Danitz 
Decl., Ex. A). Each party opposes the other’s request for judicial notice. (See 
Dkt. 90-2 (opposing BANA’s request); 92-1 (opposing Plaintiffs’ request)). “When 
ruling on a Rule 12(b)(6) motion to dismiss, if a district court considers evidence 
outside of the pleadings, it must normally convert the 12(b)(6) motion into a Rule 
56 motion for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907 
(9th Cir. 2003); see also Fed. R. Civ. P. 12(b). However, a court may “consider 
certain materials—documents attached to the complaint, documents incorporated 
by reference in the complaint, or matters of judicial notice—without converting the 
motion to dismiss into a motion for summary judgment.” Ritchie, 342 F.3d at 908 
(citations omitted). A document not attached to the complaint “may be 
incorporated by reference into a complaint if the plaintiff refers extensively to the 
document or the document forms the basis of the plaintiff’s claim.” Id. Generally, 
a document should only be treated as part of the complaint if: “(1) the complaint 
refers to the document; (2) the document is central to the plaintiff’s claim; and 
(3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” 
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). “[T]he district court may treat 
[an incorporated document] as part of the complaint, and thus may assume that 
its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).” 
Ritchie, 342 F.3d at 908; see also Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 
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988, 1003 (9th Cir. 2018). 
Additionally, in ruling on a Rule 12(b)(6) motion, courts may consider 
relevant matters subject to judicial notice. See Swartz v. KPMG LLP, 476 F.3d 
756, 763 (9th Cir. 2007). A court may “judicially notice a fact that is not subject to 
reasonable dispute because it: (1) is generally known within the trial court’s 
territorial jurisdiction; or (2) can be accurately and readily determined from 
sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 
As the parties concede, the two versions of the account agreements are 
nearly identical. (Dkt. 90-1 at 2 n.1; 92-1 at 2). There is, however, one critical 
difference: the version submitted by BANA states that North Carolina law governs 
the contract, while the version submitted by Plaintiffs states that California law 
governs. (Compare Chestnut Decl., Ex. 1 § 18, with Danitz Decl., Ex. A § 18). The 
Account Agreement at issue here covered individuals receiving EDD benefits from 
California, and Plaintiffs represent the version they provide—which states 
California law governs the contract—was obtained from BANA’s website for EDD 
Cardholders. (Dkt. 90-2). Due to the discrepancy in the governing law provision, 
Plaintiffs’ dispute the authenticity of the version filed by BANA, rendering it 
inappropriate for incorporation by reference. See Marder, 450 F.3d at 448. 
Additionally, because BANA’s version is subject to reasonable dispute by 
Plaintiffs, it isn’t an appropriate subject of judicial notice. Fed. R. Evid. 201(b). On 
the other hand, Plaintiffs’ version includes identical provisions to BANA’s version, 
and BANA doesn’t provide any reason to question the authenticity of a version of 
the Account Agreement provided on its website. (See Dkt. 92-1 at 2). Accordingly, 
BANA’s request for judicial notice is DENIED as to Exhibit 1 of to the Chestnut 
Declaration, (Dkt. 84-2); and Plaintiffs’ request for judicial notice is GRANTED as 
to Exhibit A of the Danitz Declaration, (Dkt. 90-1). The Court holds that the version 
of the Account Agreement provided by Plaintiffs is incorporated by reference into 
the complaint and appropriately assumed to be true for the purposes of this Order. 
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See Ritchie, 342 F.3d at 908; (Danitz Decl., Ex. A). 
2. 
Breach of Contract Claim 
i. 
Claims Investigation and Reimbursement 
Sections 9 and 11 of the Account Agreement provide the contractually 
mandated procedures for investigation claims of unauthorized transactions or 
error. (Danitz Decl., Ex. A §§ 9, 11). BANA argues that the MCC fails to allege 
sufficiently that it breached Sections 9 or 11. (Dkt. 84-1 at 8–12). BANA advances 
three separate arguments, which the Court addresses in turn.  
First, BANA argues all Plaintiffs fail to allege facts sufficient to trigger 
BANA’s obligations under the contract. Specifically, it argues Plaintiffs failed to 
identify an “unauthorized transaction” under Section 9 or an “error” under 
Section 11, including by making bare allegations that “fraud” occurred; failed to 
provide BANA timely notification; and failed to provide the information required 
under the Account Agreement. (Id. at 9). The Account Agreement uses nearly 
identical definitions of “unauthorized transaction” and “error” as those in the EFTA 
and Reg E. (Compare Danitz Decl., Ex. A § 9 (unauthorized transaction)), with 
15 U.S.C. § 1693a(12) (same), and 12 C.F.R. § 1005.2(m) (same); (compare 
Danitz Decl., Ex. A § 11 (error)), with 15 U.S.C. § 1693f(f) (same), and 12 C.F.R. 
§ 1005.11(a)(1) (same). The Court holds that any Plaintiff failing to allege notifying 
BANA of an unauthorized transaction or error within the meaning of the EFTA also 
fails to make such an allegation within the meaning of the Account Agreement. 
BANA’s motion to dismiss the MCC’s breach of contract is GRANTED as to any 
Plaintiff failing to allege either an unauthorized transaction or error, and the 
contract claim of any such Plaintiff is DISMISSED WITH LEAVE TO AMEND. 
BANA’s motion to dismiss is DENIED as to any Plaintiff found to have adequately 
alleged a claim under the EFTA.  
BANA also argues that many Plaintiffs failed to provide timely notice of 
fraud. The Account Agreement requires notice be provided soon after fraud 
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occurs. (See Danitz Decl., Ex. A § 9 (requiring notice of unauthorized transactions 
“within a reasonable time,” to “be determined in [BANA’s] sole discretion”); § 11 
(requiring notice of error no later than 60 days after the first statement on which 
the error appeared)). The notice period closely tracks the EFTA’s notice period. 
See 15 U.S.C. § 1693f(a) (error must be reported to financial institution within 
60 days of the consumer having been sent written documentation containing the 
error). The Court holds that any Plaintiff failing to allege timely notice under the 
EFTA also fails to allege timely notice under the Account Agreement. BANA’s 
motion to dismiss the contract claim of any Plaintiff who provided untimely notice 
is GRANTED, and the contract claim of any such Plaintiff is DISMISSED WITH 
LEAVE TO AMEND. 
Additionally, BANA argues that many Plaintiffs failed to provide the 
information required by the Account Agreement, including why they believe an 
error occurred and the dollar amount involved. (See Danitz Decl., Ex. A § 11). 
Here, the Account Agreement is slightly more restrictive than the EFTA. While the 
EFTA also requires that a consumer’s notice “[i]ndicate[] why the consumer 
believes an error exists,” the statute only requires consumers to include the 
amount of the error “to the extent possible.” See 12 C.F.R. § 1005.11(b)(1)(iii); 
15 U.S.C. § 1693f(a)(3). Every Plaintiff who sufficiently alleges providing the 
reason for their belief under the EFTA also makes that showing here. However, 
to state a claim for breach of Section 11 of the Account Agreement, each plaintiff 
must allege they provided BANA with the amount of any error. Numerous Plaintiffs 
fail to include such allegations. Therefore, BANA’s motion to dismiss the MCC’s 
breach of contract claim is GRANTED as to Plaintiffs who didn’t allege notifying 
BANA of the amount of the reported error. Those Plaintiffs’ claims are DISMISSED 
WITH LEAVE TO AMEND.  
Second, BANA argues that any Plaintiff who has been fully reimbursed fails 
to state a claim for breach of contract because they can’t allege damages. 
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(Dkt. 84-1 at 9). Unlike the EFTA, which allows a consumer to recover actual 
damages in limited circumstances, see 15 U.S.C. § 1963m(a)(1), Section 9 of the 
Account Agreement limits BANA’s liability to the amount of any unauthorized 
transaction and precludes liability for special, indirect, or consequential damages, 
(see Danitz Decl., Ex. A § 9). Therefore, any Plaintiff that has been completely 
reimbursed can’t recover contract damages, and can’t state a claim for breach of 
contract. Loiseau v. VISA USA Inc., No. 09-cv-H-JMA, 2010 WL 4542896, at *2 
(S.D. Cal. Feb. 10, 2010) (“Plaintiff cannot state a breach of contract claim as to 
either [defendant], because he fails to allege damages.”). BANA’s motion to 
dismiss the claims of any fully reimbursed Plaintiff is GRANTED, and the contract 
claim of any such Plaintiff is DISMISSED WITH PREJUDICE.16  
Third, BANA argues Plaintiffs fail to allege violations of Sections 9 or 11 of 
the Account Agreement. (Dkt. 84-1 at 10–11). Section 9 provides that BANA’s 
“Zero Liability” policy doesn’t apply to transactions that aren’t considered 
“unauthorized,” and allows BANA to determine a transaction is “unauthorized” 
 
16 For Plaintiffs affected by this dismissal, see (MCC ¶¶ 136–43 (Candace Koole); 
144–51 (Azuri Moon); 152–59 (Roland Oosthuizen); 160–70 (Rosemary 
Mathews); 171–76 (Carlos Rodriguez); 177–86 (J. Michael Willrich); 187–91 
(Lindsay McClure); 192–94 (Robert L. Wilson); 195–99 (Clara Cajas); 203–15 
(Alan Karam); 216–24 (Luis Perez); 225–28 (Brian Wiggins); 229–36 (Jonathan 
Smith); 250–53 (Cindy Baker); 254–57 (Ursula Auburn); 261–67 (Kuang Ting 
Chong); 268–73 (Stephanie Moore); 308 (Forrest Berlt); 313 (Adam Brotman); 
314 (James Bruno); 321 (Kimberly Carpenter); 322 (Patricia Castillo); 345 
(Benjamin Douglass); 350 (Maritza Escalante); 353 (Dawn Farina); 359 (Meredith 
Friday); 366 (Elizabeth Giddens); 367 (Seante Glassflowers); 369 (Barton 
Gonzalez); 382 (James Hanes); 384 (Preston Hanna); 388 (Markee Harris); 
392 (Gretchen Heinz); 396 (Anthony Hollingsworth); 406 (Shreel Jackson); 409 
(Evett Johnson); 417 (Corey Lawson); 431 (Christina McCafferty); 434 (Michael 
McCrary); 436 (Linda Miller); 441 (Tiffiany Morrell); 444 (Robert Murphy); 450 
(Mark Owensby); 452 (Laura Payton); 457 (Melanie Piette); 461 (Misty Pointer); 
465 (Andrea Quesada); 469 (Kawana Reed); 472 (Israel Rivera); 479 (Jose 
Rodriguez Romo); 482 (Miguel Salazar); 484 (Michael Schmidt); 498 (Cesar 
Tamayo); 499 (Michelle Taylor); 502 (Tasha Trammel); 515 (Denise Wilds)).  
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when it “conclude[s] that the facts and circumstances do not reasonably support 
a claim of unauthorized use.” (Danitz Decl., Ex. A § 9). All BANA must do to trigger 
Section 9 is reach such a conclusion. Similarly, Section 11 provides BANA great 
flexibility in investigating allegations of error. (See id. § 11). To perform under 
Section 11, all BANA must do is “determine whether an error occurred.” (Id.). The 
allegations in the MCC don’t sufficiently allege BANA failed to reach the 
conclusion as required by Section 9 or conduct the investigation required by 
Section 11. (See, e.g., MCC ¶ 283 (Plaintiff alleges receiving letter from BANA 
stating it had “determined that no error has occurred”)). Based on the plain 
language of the contract, Plaintiffs can’t allege BANA breached its obligations 
under the Account Agreement simply by disagreeing with the outcome.  
BANA concedes that there are a handful of Plaintiffs who have alleged they 
didn’t receive any determination from BANA. (See id. ¶¶ 114–26 (Jennifer Yick), 
200–02 (Stephanie Smith), 315 (Beth Burns), 337 (Michell de Vera); 346 (Kayli 
Duey); 384 (Preston Hanna), 398 (Crystal Horath), 440 (Sharise Morgan)). 
However, de Vera, Duey, Hanna, and Morgan’s claims under Section 9 and 11 
have already been dismissed for other reasons.  
BANA’s motion to dismiss the MCC’s claim for breach of Sections 9 and 11 
of the Account Agreement is GRANTED as to all Plaintiffs except Jennifer Yick, 
Stephanie Smith, Beth Burns, and Crystal Horath. All other claims for breach of 
Section 9 and 11 of the Account Agreement are DISMISSED WITH LEAVE TO 
AMEND.17  
ii. 
Account Freezes 
Section 2 of the Account Agreement permits BANA to freeze an EDD 
Cardholder’s account if it “suspect[s] irregular, unauthorized, or unlawful activities 
 
17 For a summary of which Plaintiffs’ contract claims are dismissed, see Column 2 
of the chart attached as Appendix A to this Order. 
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involved” in the account. (Danitz Decl., Ex. A § 2). BANA is permitted to continue 
the freeze until the end of its investigations into its suspicions. (Id.). Plaintiffs 
allege BANA breached this section by automatically freezing accounts without a 
reasonable basis to do so based on the results of an unreliable Claim Fraud Filter. 
(MCC ¶¶ 93, 108). Additionally, Plaintiffs allege BANA breached Section 2 by 
maintaining freezes longer than necessary to complete investigations. (Id. 
¶¶ 94–96, 108, 680(e)). BANA argues Plaintiffs’ allegations fail to make 
non-conclusory allegations that BANA acted for any reason other than suspicions 
of fraud or that it maintained account freezes for longer than necessary. (Dkt. 84-1 
at 12). The Court agrees. The MCC doesn’t allege that BANA lacked the requisite 
suspicion when freezing accounts. The Account Agreement doesn’t bar BANA 
from forming its suspicion with the help of a claim filter, so the use of one doesn’t 
constitute breach. As for the length of freezes, only two Plaintiffs allege that BANA 
completed its investigation and then failed to lift an account freeze, but they don’t 
allege how long BANA delayed between the resolution of the investigation and 
unfreezing their accounts. (MCC ¶¶ 211, 259). BANA’s motion to dismiss the 
MCC’s claims BANA breached Section 2 of the Account Agreement by issuing 
account freezes is GRANTED, and those claims are DISMISSED WITH LEAVE 
TO AMEND. 
iii. 
EDD Instructions 
Section 2 of the Account Agreement requires BANA to “make funds 
available” in accordance with EDD instructions. (Danitz Decl., Ex. A § 2). Plaintiffs 
allege BANA breached Section 2 by failing to make funds available when 
instructed by EDD by freezing Plaintiffs’ access to their accounts. (MCC 
¶ 608(g)–(h)). Based on the plain language of the Account Agreement, this 
argument fails. In addition to Section 2’s funding language, the Account 
Agreement also contains numerous provisions that allow BANA to restrict access 
to accounts—and therefore EDD benefits. (Danitz Decl., Ex. A § 2 (right to freeze, 
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right to withdraw funds the cardholder is “not entitled to,” delays for emergencies); 
§ 3 (right to “restrict access” to card in light of “suspicious activities,” limits on 
frequency and types of transactions); § 4 (no illegal transactions); § 16 (right to 
“close or suspend” account “at any time”)). Adopting Plaintiffs’ interpretation would 
render large portions of the Account Agreement of no effect. The Court avoids 
adopting this construction. In re Outlaw Lab’ys, LP Litig., No. 18-cv-840-GPC-
BGS, 2021 WL 1198652, at *3 (S.D. Cal. Mar. 30, 2021) (quoting 11 Williston on 
Contracts § 32:5 (4th ed. 2015)) (“An interpretation which gives effect to all 
provisions of the contract is preferred to one which renders part of the writing 
superfluous, useless or inexplicable.”). BANA’s motion to dismiss the MCC’s 
claims BANA breached Section 2 of the Account Agreement by failing to follow 
EDD instructions is GRANTED, and those claims are DISMISSED WITH LEAVE 
TO AMEND. 
G. 
Implied Contract (Claim 8) 
The MCC’s eighth claim alleges BANA breached its implied contract with 
Plaintiffs by failing “to take reasonable steps to ensure that [EDD Cardholders’ 
accounts] were secure against unauthorized transactions and that any claims 
regarding unauthorized transactions were adequately investigated and resolved.” 
(MCC ¶¶ 611–18).18 BANA argues this claim should be dismissed because: 
(1) it’s duplicative of Plaintiffs’ express contract claim, (Dkt. 84-1 at 16–17); and 
(2) the MCC doesn’t allege facts suggesting BANA assented to the implied 
contract, (id. at 17). Plaintiffs respond that, as a bank, BANA was bound by a 
contractual duty of care that is implied in all contracts between banks and their 
depositors. (Dkt. 90 at 16–18).  
Under California law, “[i]t is well established that a bank has ‘a duty to act 
 
18 The implied contract claim is brought only by the Class Plaintiffs and the 
individual Plaintiffs in the Abarr, Brotman, Meza, Morrell, Payton, Robinson, and 
Talia actions. (See MCC at 259).  
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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. 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)).  
Plaintiffs argue this implied duty of care is sufficient to adequately allege the 
existence and breach of an implied contract. However, all of the cases Plaintiffs 
cite in support of this theory rely on the implied duty to support negligence claims, 
not implied contract claims. See Chazen, 61 Cal. App. 4th 543 (analyzing implied 
duty to establish duty for a negligence claim); Webster v. HSBC Bank USA Nat’l 
Ass’n, No. CV 11-10798-DMG-AGRx, 2012 WL 13012700, at *3 (C.D. Cal. Mar. 5, 
2012) (finding implied duty sufficient to establish duty for negligence claim); 
Hawkins v. Bank of Am., N.A., No. 17-cv-1954-BAS-AGS, 2018 WL 1316160, 
at *3 (S.D. Cal. Mar. 14, 2018) (same).  
BANA’s motion to dismiss the MCC’s implied contract claim is GRANTED, 
and that claim is DISMISSED WITH PREJUDICE.  
H. 
Implied Covenant of Good Faith and Fair Dealing (Claim 9) 
The MCC’s ninth claim alleges BANA breached the implied covenant of 
good faith and fair dealing by: (1) failing to “safeguard” EDD benefits, including by 
issuing cards without EMV chips; (2) failing to ensure “effective” customer service; 
(3) failing to warn or notify Plaintiffs of unauthorized use of their cards; (4) failing 
to investigate unauthorized transaction claims or provide provisional credits; 
(5) failing to employ “reasonable practices and procedures” to safeguard Plaintiffs’ 
personal information; and (6) freezing accounts without a “reasonable basis” and 
without providing a means to contest the freeze. (MCC ¶¶ 619–24).19 BANA 
 
19 The implied covenant of good faith and fair dealing claim is brought only by the 
Class Plaintiffs and the individual Plaintiffs in the Abarr, Brotman, Meza, Morrell, 
Payton, Robinson, and Talia actions. (See MCC at 261).  
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argues Plaintiffs’ claims under the implied covenant fail for three reasons: (1) the 
implied covenant can’t “impose new obligations that extend beyond or contradict 
the Account Agreement,” (Dkt. 84-1 at 14–15); (2) an implied covenant claim can’t 
be based on the same allegations as those in the express breach of contract 
claim, (id. at 15–16); and (3) the claim is too vaguely asserted to state a claim, (id. 
at 16)).  
“There is an implied covenant of good faith and fair dealing in every contract 
that neither party will do anything which will injure the right of the other to receive 
the benefits of the agreement.” Foley v. Interactive Data Corp., 47 Cal. 3d 654, 
684 (1988) (quoting Comunale v. Traders & Gen. Ins. Co., 50 Cal. 2d 654, 658 
(1958)). The covenant can’t be used to extend or create obligations not contained 
in the original contract.” McKnight v. Torres, 563 F.3d 890, 893 (9th Cir. 2009) 
(quoting Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 
1004, 1033 (2009)). Instead, the implied covenant “prevent[s] a contracting party 
from engaging in conduct which (while not technically transgressing the express 
covenants) frustrates the other party’s rights to the benefits of the contract.” Love 
v. Fire Ins. Exchange, 221 Cal. App. 3d 1136, 1153 (1990).  
“The covenant of good faith finds particular application in situations where 
one party is invested with a discretionary power affecting the rights of another.” 
3500 Sepulveda, LLC v. Macy’s W. Stores, Inc., 980 F.3d 1317, 1324 (9th Cir. 
2020) (quoting Carma Devs. (Cal.), Inc. v. Marathon Dev. Cal., Inc., 2 Cal. 4th 
342, 372 (1992)). “The party with discretionary power must exercise such power 
in good faith and through ‘objectively reasonable conduct.’” Id. (quoting Badie v. 
Bank of Am., 67 Cal. App. 4th 779, 796 (1998)). “The issue of whether the implied 
covenant of good faith and fair dealing has been breached is ordinarily ‘a question 
of fact unless only one inference [can] be drawn from the evidence.’” Hicks v. E.T. 
Legg & Assocs., 89 Cal. App. 4th 496, 508 (2001) (quoting Paulfrey v. Blue Chip 
Stamps 150 Cal. App. 3d 187, 194 (1983)). 
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Here, the MCC alleges BANA breached the implied covenant by: issuing 
Plaintiffs inadequately secure debit cards, (MCC ¶ 622(a)(i)); unreasonably 
denying Plaintiffs’ unauthorized transaction claims, (id. ¶ 622(d)); freezing 
Plaintiffs’ accounts without a reasonable basis, (id. ¶ 662(f)); and failing to provide 
reasonably adequate customer service to assist Plaintiffs in responding to 
reported fraud or account freezes, (id. ¶ 622(b), (g)). The Account Agreement 
contains no reference to either cards with EMV chips or the adequacy of customer 
service. A claim under the implied covenant can’t create new obligations not 
contemplated by the underlying contract, so the MCC’s claim under the implied 
covenant is DISMISSED WITH LEAVE TO AMEND to the extent it relies on either 
the security of debit cards or the adequacy of customer service. McKnight, 563 
F.3d at 893.  
In contrast, the Court finds the MCC’s allegations that BANA unreasonably 
denied claims or froze accounts sufficient to state a claim under the implied 
covenant. When analyzing the MCC’s EFTA claim, the Court found that the MCC’s 
allegations were sufficient to support the plausible inference that BANA failed to 
conduct a reasonable investigation before denying Plaintiffs’ unauthorized 
transaction and error claims. See supra Section III.A.2. Specifically, the Court 
found support for that inference in the MCC’s allegations that many Plaintiffs’ 
claims were denied within one or two days and that BANA issued form letters 
lacking individualized information about each Plaintiff’s claims. (See MCC ¶¶ 89, 
130, 140, 156, 164, 181, 188, 218). The same allegations are sufficient to support 
an inference BANA failed to exercise its discretionary power under the contract 
“in good faith and through ‘objectively reasonable conduct.’” 3500 Sepulveda, 980 
F.3d at 1324 (quoting Badie, 67 Cal. App. 4th at 796), which is sufficient to allege 
a violation of the implied covenant.  
BANA argues this claim seeks to expand on BANA’s obligations under the 
Account Agreement and that it duplicates Plaintiffs’ direct contract claim. 
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(Dkt. 84-1 at 14–16). The Court disagrees. The Account Agreement allows BANA 
great discretion to deny an EDD Cardholder’s claim, (see Danitz Decl., Ex. A §§ 9, 
11), or to freeze a Cardholder’s account, (see id. § 2). Plaintiffs’ implied covenant 
claim doesn’t expand or add to these obligations; instead, it alleges BANA failed 
to exercise its “discretionary power . . . in good faith and through ‘objectively 
reasonable conduct.’” 3500 Sepulveda, 980 F.3d at 1324 (quoting Badie, 67 Cal. 
App. 4th at 796). This is a permissible claim under the implied covenant theory. 
Nor does this claim duplicate Plaintiffs’ contract claim. To state a breach of 
contract claim, Plaintiffs had to allege BANA denied claims without conducting any 
investigation or froze accounts without any suspicion of fraud. To state a breach 
of the implied covenant, Plaintiffs must allege BANA exercised its discretion 
unreasonably. These are distinct theories of liability that don’t simply duplicate 
each other.  
BANA’s motion to dismiss the MCC’s claim under the implied covenant is 
GRANTED IN PART and DENIED IN PART. That claim is DISMISSED WITH 
LEAVE TO AMEND as to the allegations BANA breached the implied covenant 
by failing to provide debits cards with EMV chips or adequate customer service. 
I. 
Fiduciary Duty (Claim 10) 
The MCC’s tenth claim alleges BANA breached its fiduciary duties to 
Plaintiffs by failing to: (1) ensure Plaintiffs weren’t denied access to their benefits; 
(2) maintain the confidentiality of Plaintiffs’ personal information; (3) disclose the 
theft of Plaintiffs’ personal information; and (4) disclose that it had failed to protect 
Plaintiffs from fraudulent transactions. (MCC ¶¶ 625–36).20 BANA argues this 
claim should be dismissed because the MCC doesn’t adequately allege that 
BANA owed Plaintiffs a fiduciary duty. (Dkt. 84-1 at 29–31). Plaintiffs don’t dispute 
 
20 The fiduciary duty claim is brought only by the Class Plaintiffs and the individual 
Plaintiffs in the Abarr, Brotman, Meza, Morrell, Payton, Robinson, and Talia 
actions. (See MCC at 263).  
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that premise, arguing instead that the MCC plausibly alleges that the relationship 
between BANA and Plaintiffs isn’t an ordinary bank-depositor relationship. 
(Dkt. 90 at 38–39).  
“[U]nder ordinary circumstances the relationship between a Bank and its 
depositor is that of debtor-creditor, and is not a fiduciary one.” Lawrence v. Bank 
of Am., 163 Cal. App. 3d 431, 437 (1985); see also Oaks Mgmt. Corp. v. Superior 
Ct., 145 Cal. App. 4th 453, 466 (2006) (“[I]n ordinary banking transactions the 
‘bank is in no sense a true fiduciary.’”); Simi Mgmt. Corp. v. Bank of Am., N.A., 
930 F. Supp. 2d 1082, 1100 (N.D. Cal. 2013). (“A bank has limited duties to its 
customers. The relationship between the two is not fiduciary, but rather is 
contractual in nature.”). However, California courts recognize that, under “special 
circumstances,” a bank may enter into a “special relationship” with a depositor 
and owe fiduciary duties. Copesky, 229 Cal. App. 3d at 691 n.12. A bank enters 
into a “special relationship” with a depositor either by “affirmatively offer[ing] trust 
and other specifically fiduciary services,” id., or when the relationship involves 
characteristics of a “special relationship”: “(1) inherently unequal bargaining 
positions; (2) nonprofit motivation [of 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 as a result of breach of trust of the other; and 
(5) awareness by the other of this special vulnerability,” id. at 687 n.7 (quoting 
Wallis v. Superior Ct., 160 Cal. App. 1109, 1118 (1984)). 
Applying the “special relationship” factors to the relationship here, the Court 
holds the MCC adequately alleges that BANA plausibly owed Plaintiffs a fiduciary 
duty. The Court analyzes the Wallis factors in turn. First, BANA holds the exclusive 
right to provide electronic benefits payment services for EDD. (MCC ¶ 39). Under 
the terms of the BANA–EDD Contract, Plaintiffs couldn’t seek similar services 
elsewhere (eliminating competition) and BANA wasn’t providing a standard 
product. This is sufficient to allege “inherently unequal bargaining positions.” Cf. 
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Copesky, 229 Cal. App. 3d at 691 (holding the parties had equal bargaining power 
when the defendant bank faced competition and offered a standard product).  
Second, Plaintiffs used their EDD benefits “to pay for housing, food, and 
other daily necessities.” (MCC ¶ 630). This is sufficient to allege Plaintiffs had a 
“nonprofit motivation.” Cf. Copesky, 229 Cal. App. 3d at 691 (finding a depositor 
had a profit motivation when the account was his business account).  
Third, the EDD benefits Plaintiffs were to receive are unemployment 
insurance or other public benefits. (MCC ¶ 626). This is sufficient to allege the 
“inadequacy of ordinary contract damages.” Cf. Copesky, 229 Cal. App. 3d at 691 
(noting this factor isn’t ordinarily satisfied for actions in commercial disputes); see 
also AFL, 88 Cal. App. 3d at 821 (“A lump sum payment, which claimants who 
successfully appeal a denial of continuing benefits receive, defeats the purpose 
of unemployment insurance.”). 
Fourth, the MCC alleges Plaintiffs, “as public benefits recipients, are 
members of a uniquely vulnerable segment of the population.” (MCC ¶ 626); see 
also AFL, 88 Cal. App. 3d at 821 (quoting Cal. Hum. Res. Dept. v. Java, 402 U.S. 
121, 131–32 (1971)) (“These [unemployment] benefits ‘provide cash to a newly 
unemployed worker “at a time when otherwise he would have nothing to spend,” 
serving to maintain the recipient at subsistence levels.’”). And relatedly, fifth, 
BANA was aware of this vulnerability. Cf. Copesky, 229 Cal. App. 3d at 691 
(holding that an ordinary checking account doesn’t suggest a “special 
vulnerability”).  
BANA argues the Court should reject Plaintiffs’ argument because it “would 
also apply to any bank accepting direct deposits: as unemployment benefits are 
not need-based but act as a substitute for income, it necessarily follows that if a 
bank holding unemployment benefits is a fiduciary, then so is an institution that 
holds paychecks.” (Dkt. 92 at 18). The Court disagrees that an ordinary banking 
relationship would qualify under this test. For example, it’s unlikely a complaint 
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against a bank accepting direct deposits of paychecks could adequately allege 
facts demonstrating “inherently unequal bargaining positions.” See Copesky, 229 
Cal. App. 3d at 687 n.7. 
Plaintiffs also argue that BANA owed EDD Cardholders fiduciary duties 
because the BANA–EDD Contract expressly provides that BANA will hold EDD 
Cardholders’ funds “‘in trust’ . . . for the cardholders.” (Dkt. 90 at 39 (quoting 
Dkt. 90-3, Danitz Decl., Ex. B at 19 (BANA-EDD Contract)).21 BANA responds that 
the provision Plaintiffs rely on refers to a “Contractor’s Trust Account” held in 
BANA’s name and isn’t “sufficient to establish that BANA held funds in trust or 
provided fiduciary services for any individual Plaintiff. (Dkt. 92 at 18 n.24). The full 
provision Plaintiffs rely on is from a section of the BANA-EDD Contract defining 
various terms and reads:  
Contractor’s 
Trust 
Account 
For the purpose of calculating revenue share, the 
average collected daily balance is the total of the daily 
collected balance on all funds held “in trust” 
(aggregated amount) for the cardholders each month 
divided by the number of days in the month. The 
contractor may maintain balances in individual 
accounts or one “trust account”, but the average 
collected daily balance calculation is based on the 
combined total of all cardholder funds. 
 
21 Plaintiffs ask the Court to take judicial notice of excerpts of the BANA-EDD 
Contract filed with their opposition. (Dkt. 90-1). As discussed previously, see 
supra Section III.F.1, a document may be incorporated by reference if: “(1) the 
complaint refers to the document; (2) the document is central to the plaintiff’s 
claim; and (3) no party questions the authenticity of the copy attached to the 
12(b)(6) motion.” Marder, 450 F.3d at 448. Here, the MCC’s breach of fiduciary 
duty claim relies, in part, on the BANA-EDD Contract. (MCC ¶ 627). BANA doesn’t 
dispute the authenticity of the page relevant to this claim. (See Dkt. 92 at 18 n.24 
(citing Danitz Decl., Ex. B at 19). The Court finds the EDD-BANA Contract: 
(1) “forms the basis of the plaintiff’s claim”; (2) is incorporated by reference into 
the MCC; and (3) is appropriately assumed to be true for the purposes of this 
Order. Ritchie, 342 F.3d at 908. Plaintiffs’ request for judicial notice is GRANTED 
only as to Page 19 of Exhibit B to the Danitz Declaration. (Dkt. 90-1).  
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(Danitz Decl., Ex. B at 19 (emphasis added)). The second sentence clearly 
requires BANA to maintain either one or multiple “trust account[(s)].” However, the 
first sentence’s reference to “all funds held ‘in trust’ . . . for the cardholders” is less 
clear. Plaintiffs’ interpretation—that BANA was required to hold EDD Cardholders’ 
funds in trust—is a plausible reading of the provision. Assuming that reading is 
correct, BANA, as the trustee of the funds, would owe EDD Cardholders fiduciary 
duties. See Chang v. Redding Bank of Com., 29 Cal. App. 4th 673, 684 (1994) 
(“A trust is a fiduciary relationship with respect to property”) (internal quotation 
marks omitted). At the pleading stage, this is sufficient to allege BANA owed 
Plaintiffs a fiduciary duty.  
BANA’s motion to dismiss the MCC’s breach of fiduciary duty claim is 
DENIED. 
J. 
Third-Party Beneficiary Claims (Claims 11 & 12) 
The MCC’s eleventh claim alleges BANA breached its contract with EDD 
and that Plaintiffs were third-party beneficiaries to that contract. (MCC 
¶¶ 637–44). The MCC’s twelfth claim alleges BANA breached the implied 
covenant of good faith and fair dealing with EDD and that Plaintiffs were third-party 
beneficiaries. (Id. ¶¶ 645–50).22 BANA argues these claims should be dismissed 
because: (1) Plaintiffs aren’t third-party beneficiaries of the EDD-BANA Contract, 
(Dkt. 84-1 at 20–22); and (2) Plaintiffs failed to sufficiently allege breach of either 
the contract or the implied covenant, (id. at 22–23).  
1. 
Governing BANA-EDD Contract 
As for the MCC’s direct contract claims, see supra Section III.F.1, the Court 
must again first determine which contract to consider when analyzing the MCC’s 
 
22 The third-party contract and implied covenant of good faith and fair dealing 
claims are brought only by the Class Plaintiffs and the individual Plaintiffs in the 
Abarr, Brotman, Meza, Morrell, Payton, Robinson, and Talia actions. (See MCC 
at 267, 269). 
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third-party contract claims. As before, BANA requests the Court take judicial 
notice of one version, (see Dkt. 84-3, Chestnut Decl., Ex. 2), and Plaintiffs request 
the Court take judicial notice of a similar version, (see Dkt. 90-3, Danitz Decl., 
Ex. B). The Court incorporates its earlier discussion of the standard for 
incorporation by reference, see supra Section III.F.1, noting that a document 
should generally only be incorporated by reference if: “(1) the complaint refers to 
the document; (2) the document is central to the plaintiff’s claim; and (3) no party 
questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder, 
450 F.3d at 448. 
The parties appear to agree that the competing excerpts of the BANA-EDD 
Contract are substantively identical. (Dkt. 90-1 at 2; 92-1 at 3).23 Among other 
things, the excerpts in question include portions of EDD’s request for proposals 
(“RFP”) (including the cover page), (Chestnut Decl., Ex. 2 at 8; Danitz Decl., Ex. B 
at 17), and the cover page of BANA’s response to the RFP, (Chestnut Decl., Ex. 2 
at 10; Danitz Decl., Ex. B at 20). There are two differences the parties identify. 
First, the cover page to EDD’s RFP included in BANA’s version has a visible 
redline change to the date. (Chestnut Decl., Ex. 2 at 8). Second, the versions have 
different dates on the cover page of BANA’s response to the RFP. (Chestnut 
Decl., Ex. 2 at 10 (August 21, 2015); Danitz Decl., Ex. B at 20 (July 10, 2015)).  
Plaintiffs argue BANA’s version can’t be incorporated by reference because 
it includes redline changes, indicating it is a draft version and placing its 
authenticity in doubt. (Dkt. 90-2 at 3 (citing Dual Diagnosis Treatment Ctr., Inc. v. 
Blue Cross of Cal., No. SA CV 15-0736-DOC-DFM, 2016 WL 6892140, at *23 
(C.D. Cal. Nov. 22, 2016) (“Where an offered [document] still has redlining or edits 
in the document, the Court is unwilling to accept the authenticity of the document 
 
23 The excerpt provided by Plaintiffs has one additional page not included in the 
excerpt submitted by BANA. (See Danitz Decl., Ex. B at 19). The Court has 
already found that page to be incorporated by reference. See supra note 21. 
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even where no party has objected.”))). BANA argues that the authenticity of 
Plaintiffs’ version is doubtful because it is clearly out of date. Because each Party 
questions the authenticity of the other’s version of the BANA-EDD agreement, 
neither can appropriately be incorporated by reference into the MCC. See Marder, 
450 F.3d at 448. However, because the versions contain identical substantive 
information, the accuracy of which isn’t questioned by either party, the Court will 
take judicial notice of both versions. See Fed. R. Evid. 201(b); Selznick v. Wells 
Fargo Bank, N.A., No. CV-15-812-MWF-MANx, 2015 WL 4069076, *2 (C.D. Cal. 
July 1, 2015) (taking judicial notice of the parties’ “somewhat different” versions of 
the same document where the relied-upon portion was the same, as it did “not 
matter whether the Court relie[d] on [Defendant’s] or Plaintiff’s version”). The 
Court GRANTS both BANA’s request for judicial notice of Exhibit 2 of the Chestnut 
Declaration, (Dkt. 84-2), and Plaintiffs’ request for judicial notice of Exhibit B of 
the Danitz Declaration, (Dkt. 90-1).24  
2. 
Intended or Incidental Beneficiary 
“[O]nly a party to a contract or an intended third-party beneficiary may sue 
to enforce the terms of a contract or obtain an appropriate remedy for breach.” 
GECCMC 2005-C1 Plummer St. Off. Ltd. P’ship v. JPMorgan Chase Bank, Nat. 
Ass’n, 671 F.3d 1027, 1033 (9th Cir. 2012). “When a government contract is at 
issue, plaintiffs must overcome a presumption that nonparties who benefit from 
the contract are incidental, rather than intended, beneficiaries.” Jafari v. FDIC, 
No. 12-cv-2982-LAB-RBB, 2015 WL 3604443, at *6 (S.D. Cal. June 8, 2015) 
(citing GECCMC 2005-C1, 671 F.3d at 1033–34). Intended third-party beneficiary 
 
24 Because the Court finds Plaintiffs aren’t third-party beneficiaries of the 
BANA-EDD Contract, see infra Section. III.J.2, it doesn’t need to consider whether 
the August 24, 2020 letter agreement between BANA and EDD (“Letter 
Agreement”) is incorporated by reference into the MCC or properly the subject of 
judicial notice. (See Chestnut Decl., Ex. 3). Therefore, BANA’s request for judicial 
notice is DENIED AS MOOT as to the Letter Agreement. (Dkt. 84-2). 
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status isn’t established by “a contract’s recitation of interested constituencies, 
vague hortatory pronouncements, statements of purpose, explicit reference[s] to 
a third party, or even a showing that the contract operates to the third parties’ 
benefit and was entered into with them in mind.” GECCMC 2005-C1, 671 F.3d at 
1033 (citations, brackets, and quotations omitted). Instead, the language of the 
contract must show a “‘clear intent’ to rebut the presumption that the [third parties] 
are merely incidental beneficiaries.” Orff v. United States, 358 F.3d 1137, 1145 
(9th Cir. 2004). 
Here, the plain language of the BANA-EDD Contract states that BANA and 
EDD entered into the agreement “for the purpose of [BANA] establishing, 
operating and maintaining a comprehensive Electronic Benefit Payment (EBP) 
service for the EDD.” (Chestnut Decl., Ex. 2 at 6 (emphasis added); Danitz Decl., 
Ex. B at 15 (same)). Plaintiffs point to numerous provisions of the BANA-EDD 
Contract that benefit only EDD Cardholders and argue they are third-party 
beneficiaries even though they aren’t the primary beneficiaries of the contract. 
(Dkt. 90 at 20–22 (citing MCC ¶¶ 42–44)). But, “explicit reference[s] to a third 
party” or “a showing that the contract operates to the third parties’ benefit and was 
entered into with them in mind” are both insufficient to show “a clear intent to rebut 
the presumption that the third parties are merely incidental beneficiaries.” Jafari, 
2015 WL 3604443, at *6; Martinez v. Socoma Cos., 11 Cal. 3d 394, 402 (1974) 
(holding government contracts don’t create third-party beneficiaries when the 
“contracts manifest no intent that the defendants pay damages to compensate 
plaintiffs or other members of the public for [the contractor’s] nonperformance”); 
Goonewardene v. ADP, LLC, 6 Cal. 5th 817, 835 (2019) (holding employee wasn’t 
a third-party beneficiary of her employer’s contract with a payroll company when 
the “relevant motivating purpose” was to distribute payroll checks). The Court 
holds that the language of the BANA-EDD Contract doesn’t show a “clear intent” 
that Plaintiffs were intended beneficiaries of the contract. See Orff, 358 F.3d at 
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1145. Because Plaintiffs aren’t intended third-party beneficiaries of the 
BANA-EDD Contract, they can’t bring a claim to enforce the terms of that 
agreement. See Jafari, 2015 WL 3604443, at *6 (quoting Astra USA, Inc. v. Santa 
Clara Cnty., 563 U.S. 110, 118 (2011)) (“Thus, while there may have been ‘an 
intention to benefit a third party,’ Plaintiffs can’t show ‘an intention that the third 
party should have the right to enforce that intention.’”).  
BANA’s motion to dismiss the MCC’s third-party beneficiary claims for 
breach of contract and breach of the implied covenant is GRANTED, and those 
claims are DISMISSED WITH PREJUDICE.  
K. 
Due Process (Claims 13 & 14) 
The MCC’s thirteenth and fourteenth claims allege BANA violated Plaintiffs’ 
rights under the Due Process Clauses of the Fourteenth Amendment to the United 
States Constitution, (MCC ¶¶ 651–61), and California Constitution, (id. 
¶¶ 662–66), by depriving them of constitutionally protected interested without due 
process.25 BANA moves to dismiss both claims, arguing Plaintiffs (1) fail 
adequately allege BANA was acting as state actor; and (2) fail to allege facts 
showing a due process violation. (Dkt. 84-1 at 36–40).  
1. 
State Action 
BANA contends it wasn’t acting as a state actor when it allegedly froze 
Plaintiffs’ accounts. (Dkt. 84-1 at 36–39). Plaintiffs bring their Fourteenth 
Amendment claim under 42 U.S.C. § 1983. (MCC ¶ 653). To state a claim under 
§ 1983, a complaint must allege facts showing the plaintiff was “deprived of a right 
secured by the Constitution or laws of the United States,” and that “the alleged 
deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. 
Sullivan, 526 U.S. 40, 49–50 (1999). The requirements under the California 
 
25 The Due Process claims are brought only by the Class Plaintiffs and the 
individual Plaintiffs in the Abarr, Brotman, Meza, Morrell, Payton, and Robinson 
actions. (See MCC at 272, 274).  
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Constitution are the same. See Kruger v. Wells Fargo Bank, 11 Cal. 3d 352, 356 
(1974). In other words, to state a claim under either the United States or California 
constitutions, Plaintiffs must plead facts showing BANA was acting as a state 
actor. To make that showing, Plaintiffs allege BANA was (1) “perform[ing] a 
function that is both traditionally and exclusively governmental,” and (2) “engaged 
in a joint undertaking with the State to provide and administer [unemployment 
insurance] and other EDD benefits under a mutually beneficial relationship.” (MCC 
¶ 654). Either theory is sufficient to satisfy the state action requirement. See 
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (“Satisfaction of any one 
test [of the four used in the Ninth Circuit] is sufficient to find state action.”).  
“The public function test is satisfied only on a showing that the function at 
issue is ‘both traditionally and exclusively governmental.’” Rawson v. Recovery 
Innovations, Inc., 975 F.3d 742, 748 (9th Cir. 2020) (quoting Kirtley, 326 F.3d 
at 1093). “At bottom, the inquiry is always whether the defendant has ‘exercised 
power “possessed by virtue of state law and made possible only because the 
wrongdoer is clothed with the authority of state law.”’” Id. (quoting West v. Atkins, 
487 U.S. 42, 49 (1988)).  
BANA argues that its conduct—servicing Plaintiffs’ EDD Debit Cards—is a 
classic function of private bank, and that its conduct shouldn’t be treated as state 
action simply because it is a government contractor. (Dkt. 84-1 at 37 (citing Belue 
v. Keefe Commissary Grp., LLC, No. 1:20-cv-540-DCN, 2021 WL 1197749, at *3 
(D. Idaho Mar. 29, 2021) (“[M]aintaining or managing financial accounts is not a 
function that is traditionally and exclusively performed by the government.”); 
Venegas v. Bianco, No. EDCV 19-01260-JLS-SHK, 2019 WL 10301094, at *9 
(C.D. Cal. Aug. 26, 2019) (same); Hester v. Regions Bank, No. 2:09cv908–WHA, 
2010 WL 2232158, at *5 (M.D. Ala. June 3, 2010) (“[T]he actions in question are 
the freezing of private bank accounts, and the transfer of funds, which are not 
traditionally the exclusive prerogative of the state.”); Renderall-Baker v. Kohn, 457 
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U.S. 830, 842 (1982) (“[S]erv[ing] the public does not make [a private actor’s 
actions] state action.”); Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d 
244, 248 (1st Cir. 2012) (holding a private entity does not become a state actor 
merely because it manages government funds))). 
Classifying BANA’s function as that of a “private bank,” “government 
contractor,” or money manager understates BANA’s role in California’s EDD 
benefits system. The MCC alleges, and BANA doesn’t dispute, that since 2010, 
BANA has held the exclusive contractual right and duty to provide electronic 
benefits payment services for EDD. (MCC ¶ 39). Additionally, the MCC plausibly 
alleges that EDD presents BANA debit cards as the “exclusive means” to receive 
EDD benefits. (See id. ¶ 47 (“EDD Debit Cards are the default payment method 
for EDD benefits, and EDD’s website presents EDD Debit Cards as the exclusive 
means of receiving EDD benefits.”)). Accepting these allegations as true—which 
the Court must at this stage—the MCC plausibly alleges that BANA is responsible 
for the administration and distribution of California’s EDD benefits. That leaves 
the question of whether the distribution of such benefits is a function that is “both 
traditionally and exclusively governmental.” Kirtley, 326 F.3d at 1093.  
Plaintiffs cite two cases to support their argument that BANA has performed 
a function that is traditionally and exclusively reserved to the state. First, they cite 
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). (See Dkt 90 
at 44–45). In Cahoo, the district court found that unemployment insurance 
claimants whose applications were incorrectly flagged as fraudulent by the state’s 
automated fraud detection system stated a claim against the state contractor that 
administered the system. 322 F. Supp. 3d at 793. BANA urges that Cahoo is 
inapposite because the government contractor there not only had the power to 
detect fraud (a power BANA possesses), but also made determinations that 
claimants acted unlawfully and assessed penalties (a power BANA lacks). 
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(Dkt. 92 at 22 (citing Cahoo, 322 F. Supp. 3d at 785–86, 801–02)). While BANA 
is correct that the contractor in Cahoo possessed greater power than BANA has 
here, BANA is still invested with the power to distribute EDD benefits payments 
and, if it freezes an account, to suspend a claimant’s access to those benefits 
which have already been distributed. See Cahoo, 322 F. Supp. 3d at 793 
(“[T]there is no question that the administration of unemployment benefits is a 
power traditionally exclusively reserved to the State.”).  
Plaintiffs also cite Brown v. Stored Value Cards, Inc., No. 3:15-cv-1370-MO, 
2016 WL 4491836 (D. Or. Aug. 25, 2016), rev’d on other grounds, 953 F.3d 567, 
575 (9th Cir. 2020). (See Dkt 90 at 45). In Brown, the plaintiff was briefly held in 
state custody and, when she was released, given a preloaded debit card with a 
balance equivalent to the cash in her possession when she was booked. 2016 WL 
4491836, at *1. The district court found that the complaint plausibly stated a claim 
that the government contractor responsible for administering the debit card was a 
state actor because the relationship between the plaintiff and the defendant 
contractor “could only come about through the exercise of the state’s power.” Id. 
at *2. BANA argues Brown is distinguishable because the plaintiff there had “no 
choice on how to retrieve” her funds, whereas Plaintiffs here have the option to 
receive a paper check—an option that some Plaintiffs took. (Dkt. 92 at 23 (quoting 
Brown, 2016 WL 4491836, at *2)). But, as the Court has already discussed, the 
MCC plausibly alleges that EDD presents BANA debit cards as the “exclusive 
means” to receive EDD benefits. (See MCC ¶ 47). And while a small number of 
Plaintiffs allege they eventually obtained paper checks directly from EDD, all 
Plaintiffs allege that BANA’s conduct prevented them from receiving benefits to 
which they were legally entitled for at least some period of time. (See, e.g., id. 
¶¶ 174–74 (Carlos Rodriquez alleging he obtained paper checks from EDD after 
he was unable to access his benefits for two months because his account was 
frozen)). Because BANA-provided debit cards were held out as the exclusive 
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means of receiving EDD benefits, the MCC plausibly alleges that the relationship 
between Plaintiffs and BANA only came about “through the exercise of the state’s 
power.” Brown, 2016 WL 4491836, at *2.  
The Court holds the MCC plausibly alleges that BANA’s role in administering 
the distribution of EDD benefits is a function that is “both traditionally and 
exclusively governmental.” Kirtley, 326 F.3d at 1093. Because the Court holds 
that the MCC satisfies the public function test, it need not consider whether the 
MCC alleges sufficient facts to satisfy the joint action test. See id. at 1092.  
2. 
Deprivation of Due Process 
To state a claim for a procedural due process violation, the complaint must 
allege “two distinct elements: (1) a deprivation of a constitutionally protected 
liberty or property interest, and (2) a denial of adequate procedural protections.” 
Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 
1998). BANA can’t seriously dispute that Plaintiffs have a constitutionally 
protected property interest in the EDD benefits for which they were approved. See 
AFL, 88 Cal. App. 3d at 820 (“It is clear then that unemployment insurance 
benefits are a type of property interest protected by the due process clause.”); 
Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (holding the procedural due process 
protections attach to the “withdrawal of public assistance benefits” and 
“disqualification for unemployment compensation”). 
With respect to future benefits—i.e. those payments not yet deposited in a 
BANA account by EDD—BANA argues that, because the MCC establishes that 
Plaintiffs could have requested an alternative method to receive their benefits 
payments, there is no deprivation of a property interest, and therefore no due 
process claim. (Dkt. 90 at 24 (citing Tate v. Univ. Med. Ctr. of S. Nev., 637 F. 
Supp. 2d 892, 898 (D. Nev. 2009) (finding no deprivation of property interest 
where Defendants “limited one of several avenues” by which Plaintiff could 
exercise his clinical privileges, but did not “limit the privilege itself”))).  
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The situation here is distinct from Tate. There, the only inference the 
complaint permitted was that the defendants limited “one of several avenues” the 
plaintiff doctor had for exercising his clinical privileges. See Tate, 637 F. Supp. 2d 
at 898. Here, the only plausible inference the MCC permits is that EDD presented 
BANA debit cards as the “exclusive means” of receiving EDD benefits. (See MCC 
¶ 47 (“EDD Debit Cards are the default payment method for EDD benefits, and 
EDD’s website presents EDD Debit Cards as the exclusive means of receiving 
EDD benefits.”); see also id. ¶ 39 (alleging BANA and EDD “entered into an 
exclusive contract . . . for the provision of Electronic Benefits Payment . . . 
Services”)). Thus, when BANA froze or otherwise restricted Plaintiffs’ accounts, 
BANA effectively denied them the benefit by blocking the only known method of 
access. Allegations that a handful of Plaintiffs were able to request paper checks 
directly from EDD don’t change that conclusion. (See id. ¶¶ 174, 223, 433, 452, 
475 (Plaintiffs alleging they started receiving paper checks directly from EDD after 
requested that form of payment)). These allegations are sufficient to allege the 
“deprivation of a constitutionally protected . . . property interest.” Brewster, 149 
F.3d at 982. 
That leaves the question of whether the MCC plausibly alleges that BANA 
failed to conform to the requirements of due process. To determine whether 
procedural protections are adequate, the Ninth Circuit applies the three-part 
balancing test established in Mathews v. Eldridge, 424 U.S. 319 (1976). See, e.g., 
Franceschi v. Yee, 887 F.3d 927, 936–37 (9th Cir. 2018) (applying the Mathews 
test). “Under Mathews we consider (1) ‘the private interest that will be affected by 
the official action’; (2) ‘the risk of an erroneous deprivation of such interest through 
the procedure used, and the probable value, if any, of additional or substitute 
procedural safeguards’; and (3) the government’s interest in minimizing the cost 
and burden of additional or substitute procedures.” Id. (quoting Mathews, 424 U.S. 
at 335).  
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Applying the Mathews factors to the EDD benefits at issue here, the MCC 
plausibly alleges that BANA’s procedures for freezing accounts failed to comply 
with the requirements of due process. First, the private interests at issue here are 
EDD benefits, including unemployment insurance, pandemic unemployment 
assistance, pandemic emergency unemployment compensation, disability 
insurance, and paid family leave. (MCC ¶ 38). While access to public benefits 
such as these isn’t a fundamental right, once EDD determined that Plaintiffs were 
eligible, Plaintiffs had a protected property interest in the benefits. See, e.g., 
Goldberg, 397 U.S. at 262, 267–68 (holding the “termination” of public benefits 
payments “involves state action that adjudicates important rights” and requires a 
hearing). The nature of the protected interest is illustrated by the harms Plaintiffs 
allege they experienced after their accounts were frozen. (See, e.g., MCC ¶ 433 
(Jennifer Meza alleges that she and her daughter became homeless after her 
account was frozen)).26  
Second, the MCC plausibly alleges that the risk the challenged procedure 
will result in erroneous deprivation of protected interests is high. It isn’t entirely 
clear what, if any, process BANA provides before or after instituting an account 
freeze. BANA’s briefing appears to admit that neither notice nor an opportunity to 
be heard were provided to Plaintiffs before their accounts were frozen. (See 
 
26 See also Goldberg, 397 U.S. at 264 (“[W]hen welfare is discontinued, only a 
pre-termination evidentiary hearing provides the recipient with procedural due 
process. For qualified recipients, welfare provides the means to obtain essential 
food, clothing, housing, and medical care. Thus the crucial factor in this context—a 
factor not present in the case of the blacklisted government contractor, the 
discharged government employee, the taxpayer denied a tax exemption, or 
virtually anyone else whose governmental entitlements are ended—is that 
termination of aid pending resolution of a controversy over eligibility may deprive 
an eligible recipient of the very means by which to live while he waits. Since he 
lacks independent resources, his situation becomes immediately desperate. His 
need to concentrate upon finding the means for daily subsistence, in turn, 
adversely affects his ability to seek redress from the welfare bureaucracy.”). 
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Dkt. 84-1 at 39–40; Dkt. 92 at 25). And the MCC alleges that, starting in 
October 2020, BANA implemented a policy of freezing accounts without providing 
any notice. (See MCC ¶¶ 93–95, 108). Plaintiffs allege this practice continues to 
this day. (See id. ¶¶ 111–12). The MCC also alleges that BANA’s “procedures” 
frequently resulted in the erroneous deprivation of EDD benefits. For example, 
numerous Plaintiffs allege that BANA froze their accounts before unfreezing them 
months later with no explanation, or reversed course on whether to issue credits 
for funds. (See, e.g., id. ¶¶ 127–35 (Vanessa Rivera alleges her fraud claim was 
denied and her account was frozen in February 2021, and that she was 
reimbursed and her account was unfrozen only in April 2021, after the class action 
suit was filed)). Allegations such as these strongly support an inference that the 
lack of procedures resulted in erroneous deprivations of EDD benefits. The 
second step of the Mathews framework also considers “the probable value, if any, 
of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335. 
Many of the account freezes described in the MCC involve circumstances that, if 
raised in a pre-deprivation procedure, would have plausibly prevented the 
erroneous deprivation. (See, e.g., MCC ¶ 313 (Adam Brotman alleges his account 
was frozen after he reported a fraudulent transaction that occurred in Birmingham, 
England, the same day he, a San Diego County resident, conducted a transaction 
in San Diego)). The Court holds that the MCC’s allegations plausibly support an 
interference that additional procedures could have prevented erroneous 
deprivations.  
Third, BANA, acting on behalf of the State of California, obviously has a 
strong interest in preventing fraud. BANA argues that if additional pre-deprivation 
procedures were instituted, bad actors would take advantage of any additional 
notice and move quickly to steal more money from the government. (Dkt. 84-1 
at 40 (arguing it is reasonable and logical to “freeze accounts without advance 
notice to ‘avoid the risk that [the cardholder] would dissipate his assets or attempt 
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to put them beyond the government’s reach’”) (quoting Spiegel v. Ryan, 946 F.2d 
1435, 1440 (9th Cir. 1991)). It also argues that its efforts to prevent EDD fraud 
falls within the exception carved out by FDIC v. Mallen, 486 U.S. 230, 240 (1988), 
which holds: “An important government interest, accompanied by a substantial 
assurance that the deprivation is not baseless or unwarranted, may in limited 
cases demanding prompt action justify postponing the opportunity to be heard 
until after the initial deprivation.” (See Dkt. 84-1 at 40 (quoting Mallen, 486 U.S. 
at 240)). While it’s possible facts uncovered during discovery will demonstrate that 
this exception applies here, the allegations in the MCC don’t suggest that BANA 
provided any post-deprivation notice or opportunity to be heard.  
Upon consideration of the Mathews factors, the Court holds that the MCC 
states a claim for a due process violation by alleging BANA deprived Plaintiffs of 
a protected property interest without providing adequate due process. 
*     *     * 
BANA’s motion to dismiss the MCC’s due process claims is DENIED. 
// 
// 
// 
// 
// 
// 
// 
// 
// 
// 
// 
// 
// 
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IV. 
CONCLUSION 
The Court GRANTS IN PART and DENIES IN PART BANA’s motion to 
dismiss the MCC. The MCC’s fourth, eleventh, and twelfth claims are DISMISSED 
WITH PREJUDICE. The MCC’s third and eighth claims are DISMISSED WITH 
LEAVE TO AMEND. The MCC’s first, second, fifth, seventh, and ninth claims are 
DISMISSED IN PART WITH LEAVE TO AMEND as described herein. Plaintiffs 
may file an Amended Master Consolidated Complaint addressing the deficiencies 
identified in this order by June 6, 2023.  
Further, to ensure this action continues to progress promptly, the discovery 
stay is lifted and Magistrate Judge Michael Berg is directed to issue a Case 
Management Order regulating discovery forthwith.  
IT IS SO ORDERED. 
Dated:  May 25, 2023 
Hon. Larry Alan Burns 
United States District Judge 
 
 
 
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Appendix A 
Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Abarr 
Paul 
¶ 286 
 
 
Abbot 
Kobe 
¶ 287 
 
 
Adams 
Michael 
¶ 289 
 
 
Aders 
Jordan 
¶ 288 
 
 
Aguirre 
Jonathan 
¶ 290 
 
 
Allison 
Christopher 
¶ 291 
 
 
Alvarez 
Kevin 
¶ 292 
X – No qualifying error 
X – No qualifying error 
Alvarez 
Courtney 
¶ 293 
 
 
Alvarez 
Rosa 
¶ 294 
 
 
Anderson 
David 
¶ 295 
 
 
Anderson 
Rebekah 
¶ 296 
X – No qualifying error 
X – No qualifying error 
Andrade 
Amanda 
¶ 297 
X – No qualifying error 
X – No qualifying error 
Anistik 
Sheila 
¶ 299 
 
 
Arnoldstarr 
Robert 
¶ 300 
X – No qualifying error 
X – No qualifying error 
Arrey 
Vanessa 
¶ 301 
 
 
Auburn 
Ursula 
¶¶ 254–57 
 
X – Reimbursed 
Ayala 
Christal 
¶ 302 
X -No notice 
X -No notice 
Back 
Celina 
¶ 303 
X – No qualifying error 
X – No qualifying error 
Baker 
Cindy 
¶¶ 250–53 
 
X – Reimbursed 
Barnettte 
Mark 
¶ 304 
 
 
Beckham 
Douglas 
¶ 305 
X – No qualifying error 
X – No qualifying error 
Beehler 
Sky 
¶ 306 
X – No qualifying error 
X – No qualifying error 
Bennett 
Amber 
¶ 307 
X – No qualifying error 
X – No qualifying error 
Berlt 
Forrest 
¶ 308 
X – No qualifying error 
X – No qualifying error 
X – Reimbursed 
Blacksands 
Stone 
¶ 309 
X – Freeze 
X – Freeze 
Blankenship 
Claire 
¶¶ 279–84 
 
 
Bommel 
Dean 
¶ 310 
 
 
Brady 
Nicholas 
¶ 311 
 
 
Brooks 
James 
¶ 312 
X -Untimely 
X -Untimely 
Brotman 
Adam 
¶ 313 
 
X – Reimbursed 
Bruno 
James 
¶ 314 
 
X – Reimbursed 
Burns 
Beth 
¶ 315 
 
Not dismissed 
Burrow 
Dwight 
¶ 316 
 
 
Bynum 
Mario 
¶ 317 
X – No qualifying error 
X – No qualifying error 
Byrn 
Daniel 
¶ 318 
 
 
Cajas 
Clara 
¶¶ 195–99 
 
X – Reimbursed 
Calzado 
Joseph 
¶ 319 
 
 
Camberos 
Stacey 
¶ 320 
 
 
Cardenas Cortez 
Victor 
¶ 333 
 
 
Carpenter 
Kimberly 
¶ 321 
X – No qualifying error 
X – No qualifying error 
X – Reimbursed 
Castillo 
Patricia 
¶ 322 
X – No qualifying error 
X – No qualifying error 
X – Reimbursed 
Caton 
Richard 
¶ 323 
 
 
Chapple 
Susan 
¶ 324 
 
 
Chase 
Randy 
¶ 325 
X -No notice 
X -No notice 
Chavez 
Angela 
¶ 326 
X – No qualifying error 
X – No qualifying error 
 
27 Unless otherwise indicated, all the MCC’s contract claims are also dismissed for 
failure to state a violation of Section 9 or 11 of the Account Agreement. See supra 
Section III.F.2.i. 
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Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Chavez 
Phillip 
¶ 327 
 
 
Chong 
Kuang Ting 
¶¶ 261–67 
 
X – Reimbursed 
Cochran 
Tiffany 
¶ 328 
 
 
Collins 
LaMar 
¶ 329 
 
 
Contreras 
Jennifer 
¶ 330 
 
 
Contreras 
Jose 
¶ 331 
 
 
Corella 
Donmonique 
¶ 332 
 
 
Cortez-Gonzalez 
Crystal 
¶ 334 
 
 
D’Agostino Criado 
Teresa 
¶ 335 
X - No qualifying error 
X - No qualifying error 
Dale 
Heather 
¶ 336 
X - No qualifying error 
X - No qualifying error 
De Hoyos 
Marcus 
¶ 400 
 
 
De Los Angeles, Sr. 
Samuel 
¶ 298 
X - No qualifying error 
X - No qualifying error 
de Vera 
Michell 
¶ 337 
X - No qualifying error 
X - No qualifying error 
Deasy 
Timothy 
¶ 338 
 
 
Delariva 
Luis 
¶ 339 
 
 
Delgado 
Delbert 
¶ 340 
 
 
Delgado 
Selena 
¶ 341 
 
 
Dirickson 
Nickolaus 
¶ 342 
 
 
Dones 
Lorina 
¶ 343 
X - No qualifying error 
X - No qualifying error 
Douglas 
Anthony 
¶ 344 
X – Freeze 
X – Freeze 
Douglass 
Benjamin 
¶ 345 
X - No qualifying error 
X - No qualifying error 
X - Reimbursed 
Duey 
Kayli 
¶ 346 
X - No qualifying error 
X - No qualifying error 
Eason 
Roxanne 
¶ 347 
 
 
Echeverria 
Peter 
¶ 348 
X - No qualifying error 
X - No qualifying error 
Edwards 
Linda 
¶ 349 
 
 
Escalante 
Maritza 
¶ 350 
 
X - Reimbursed 
Espalin 
Marley 
¶ 351 
 
 
Estrada 
Juan 
¶ 352 
X - No qualifying error 
X - No qualifying error 
Farina 
Dawn 
¶ 353 
 
X - Reimbursed 
Ferraro 
Cody 
¶ 354 
 
 
Flores 
Jacob 
¶ 355 
X - No qualifying error 
X - No qualifying error 
Flores 
Arnold 
¶ 356 
 
 
Flores 
Stephanie 
¶ 357 
X - Freeze 
X - Freeze 
Franks 
Anthony 
¶ 358 
 
 
Friday 
Meredith 
¶ 359 
X - No qualifying error 
X - No qualifying error 
X - Reimbursed 
Friend 
Joseph 
¶ 360 
 
 
Gage 
Latisha 
¶ 362 
 
 
Galicia 
Abigail 
¶ 361 
 
 
Garcia 
Monica 
¶ 363 
 
 
Gaynor 
Glynda 
¶ 364 
 
 
George 
Laquitta 
¶ 365 
X - No qualifying error 
X - No qualifying error 
Giddens 
Elizabeth 
¶ 366 
 
X - Reimbursed 
Glassflowers 
Seante 
¶ 367 
 
X - Reimbursed 
Gonzalez 
Angela 
¶ 368 
 
 
Gonzalez 
Barton 
¶ 369 
 
X - Reimbursed 
Gonzalez 
Lizet 
¶ 370 
 
 
Graham 
Lainie Ann 
¶ 371 
 
 
Grant 
Audrey 
¶ 372 
 
 
Gray 
Willie 
¶ 373 
 
 
Grimes 
Sean 
¶ 374 
 
 
Guadalajara 
Jeffrey 
¶ 375 
 
 
Guirguis 
Noah 
¶ 376 
X - Freeze 
X – Freeze 
Gutcher 
Lyndsey 
¶ 377 
 
 
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Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Gutierrez 
Andres 
¶ 378 
 
 
Gutierrez 
Angelica 
¶ 379 
 
 
Gutierrez 
Crystal 
¶ 380 
 
 
Hakopian 
Shant 
¶ 381 
 
 
Hanes 
James 
¶ 382 
 
X - Reimbursed 
Haney 
Micah 
¶ 383 
X - No qualifying error 
X - No qualifying error 
Hanna 
Preston 
¶ 384 
 
X - Reimbursed 
Harden 
Rebecca 
¶ 385 
 
 
Harper 
Johnny 
¶ 386 
 
 
Harris 
Ivan 
¶ 387 
X -No notice 
X -No notice 
Harris 
Markee 
¶ 388 
 
X - Reimbursed 
Hart 
Steven 
¶ 389 
 
 
Hassanshahi 
Bahram 
¶ 390 
X - No qualifying error 
X - No qualifying error 
Hayden 
Kaytricia 
¶ 391 
 
 
Heinz 
Gretchen 
¶ 392 
X - Freeze 
X - Freeze 
X - Reimbursed 
Hernandez 
Ronnie 
¶ 393 
 
 
Hernandez 
Ruben 
¶ 394 
X -No notice 
X -No notice 
Hernandez 
Vanessa 
¶ 395 
X - No qualifying error 
X - No qualifying error 
Hicks 
Julie 
¶¶ 258–60 
 
 
Hollingsworth 
Anthony 
¶ 396 
 
X - Reimbursed 
Holloway 
Lindsie 
¶ 397 
 
 
Horath 
Crystal 
¶ 398 
 
Not dismissed 
Howze 
Terrance 
¶ 399 
X -No notice 
X -No notice 
Hutchins 
Sharonna 
¶ 401 
 
 
Huynh 
Quoc 
¶ 402 
X - Freeze 
X - Freeze 
Idemudia 
John 
¶ 403 
 
 
Isles 
Juanita 
¶ 404 
X - No qualifying error 
X - No qualifying error 
Jabara 
Derrick 
¶ 405 
 
 
Jackson 
Shreel 
¶ 406 
 
X - Reimbursed 
Jaurigue, Jr. 
Robert 
¶ 407 
X -No notice 
X -No notice 
Jeff 
Anthony 
¶ 408 
 
 
Johnson 
Evett 
¶ 409 
 
X - Reimbursed 
Johnson 
Lester 
¶ 410 
 
 
Johnson 
Terrell 
¶ 411 
 
 
Jones 
Brian 
¶ 412 
 
 
Jones 
Victoria 
¶ 413 
X - Freeze 
X - Freeze 
Karam 
Alan 
¶¶ 203–15 
 
X - Reimbursed 
Kelly 
Olivia 
¶ 414 
 
 
Kessler 
Erick 
¶ 415 
 
 
Knight 
Deandre 
¶ 416 
 
 
Koole 
Candace 
¶¶ 136–43 
 
X - Reimbursed 
Lawson 
Corey 
¶ 417 
 
X - Reimbursed 
Laxton 
Sabrina 
¶ 418 
X - Freeze 
X - Freeze 
Lind 
Tonya 
¶ 419 
X - Freeze 
X - Freeze 
Littles 
Limmie 
¶ 420 
X - Freeze 
X - Freeze 
Lopez 
Ronda 
¶ 421 
 
 
Loredo 
Ernie 
¶ 422 
X -Untimely 
X -Untimely 
Madrid 
Raina 
¶ 423 
X - No qualifying error 
X - No qualifying error 
Madrid 
Mario 
¶ 424 
X - No qualifying error 
X - No qualifying error 
Magallan 
Joseph 
¶ 425 
 
 
Main 
Joseph 
¶ 426 
 
 
Martinez 
Danela 
¶ 427 
 
 
Mathews 
Rosemary 
¶¶ 160–70 
 
X - Reimbursed 
Matson, Jr. 
Russell 
¶ 428 
 
 
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Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Matthews 
Vernon 
¶ 429 
 
 
Maurer 
Janelle 
¶ 430 
 
 
McCafferty 
Christina 
¶ 431 
X - No qualifying error 
X - No qualifying error 
X - Reimbursed 
McCann 
Brenda 
¶ 432 
 
 
McClure 
Lindsay 
¶¶ 187–91 
 
X - Reimbursed 
McCrary 
Michael 
¶ 434 
 
X - Reimbursed 
Meza 
Jennifer 
¶ 433 
 
 
Middleton 
Travis 
¶ 435 
X -Untimely 
X -Untimely 
Miller 
Linda 
¶ 436 
 
X - Reimbursed 
Moon 
Azuri 
¶¶ 144–51 
 
X - Reimbursed 
Moore 
Stephanie 
¶¶ 268–73 
 
X - Reimbursed 
Moore 
Lavell 
¶ 437 
 
 
Morales 
Sara 
¶ 438 
 
 
Morales 
Albert 
¶ 439 
 
 
Morgan 
Sharise 
¶ 440 
X - No qualifying error 
X - No qualifying error 
Morrell 
Tiffiany 
¶ 441 
 
X - Reimbursed 
Morris 
Heather 
¶ 442 
 
 
Mouck 
Janette 
¶ 443 
 
 
Murphy 
Robert 
¶ 444 
 
X - Reimbursed 
Murphy 
Sarah 
¶ 445 
X - No qualifying error 
X - No qualifying error 
Nicholson 
Kimberly 
¶ 446 
 
 
Ojeda 
Lelanya 
¶ 447 
 
 
Oosthuizen 
Roland 
¶¶ 152–59 
 
X - Reimbursed 
Ortiz, Jr. 
Frank 
¶ 448 
X - Freeze 
X – Freeze 
Owen 
Kelly 
¶ 449 
 
 
Owensby 
Mark 
¶ 450 
 
X - Reimbursed 
Paningbatan 
Flouzel 
¶ 451 
 
 
Payton 
Laura 
¶ 452 
 
X - Reimbursed 
Pena, Jr. 
Ismael 
¶ 453 
 
 
Perez 
Luis 
¶¶ 216–24 
 
X - Reimbursed 
Perez 
Ann 
¶ 454 
X - No qualifying error 
X - No qualifying error 
Perez 
Paul 
¶ 455 
 
 
Perkins 
Kenyon 
¶ 456 
X - No qualifying error 
X - No qualifying error 
Petrova 
Zinaida 
¶¶ 274–78 
 
 
Piette 
Melanie 
¶ 457 
 
X - Reimbursed 
Pita 
Ryan 
¶ 458 
 
 
Pitts 
Darnell 
¶ 459 
 
 
Pitts 
Vannessa 
¶ 460 
 
 
Pointer 
Misty 
¶ 461 
X - Moot 
X - Reimbursed 
Pomeroy 
Tina 
¶ 462 
X - No qualifying error 
X - No qualifying error 
Posten 
Randle 
¶ 463 
 
 
Pummill 
Joshua 
¶ 464 
X - No qualifying error 
X - No qualifying error 
Quesada 
Andrea 
¶ 465 
 
X - Reimbursed 
Quiroz 
Maurilio 
¶ 466 
 
 
Raiff 
Mykela 
¶ 467 
X -No notice 
X -No notice 
Ray 
Moaney 
¶ 468 
 
 
Reed 
Kawana 
¶ 469 
X - No qualifying error 
X - No qualifying error 
X - Reimbursed 
Rima-Fleurima 
Nehemiah 
¶ 470 
X -No notice 
X -No notice 
Ritchey 
Rhonda 
¶ 471 
 
 
Rivera 
Vanessa 
¶¶ 127–35 
 
 
Rivera 
Israel 
¶ 472 
 
X - Reimbursed 
Roa 
Miguel 
¶ 473 
X -No notice 
X -No notice 
Robinson 
Carmen 
¶ 474 
X -No notice 
X -No notice 
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21
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23
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Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Robinson 
Stanley 
¶ 475 
 
 
Robles 
Joe 
¶ 476 
X - No qualifying error 
X - No qualifying error 
Rodriguez 
Carlos 
¶¶ 171–76 
 
 
Rodriguez 
Catrina 
¶ 477 
 
 
Rodriguez Romo 
Jose 
¶ 479 
 
X - Reimbursed 
Rojas de Charolet 
Elana Martina 
¶ 478 
 
 
Royston 
Melissa 
¶ 480 
 
 
Salaz 
Raylene 
¶ 481 
X - No qualifying error 
X - No qualifying error 
Salazar 
Miguel 
¶ 482 
 
X - Reimbursed 
Saldate 
Frankie 
¶ 483 
X -No notice 
X -No notice 
Schmidt 
Michael 
¶ 484 
 
X - Reimbursed 
Schmitz 
Timothy 
¶ 485 
X -No notice 
X -No notice 
Serrato 
Melissa 
¶ 486 
 
 
Sevilla 
Arminda 
¶ 487 
 
 
Silva 
Jenna 
¶ 488 
X -No notice 
X -No notice 
Simpson 
Jessica 
¶ 489 
 
 
Sims II 
Michael 
¶ 490 
 
 
Smith 
Stephanie 
¶¶ 200–02 
 
Not dismissed 
Smith 
Jonathan 
¶¶ 229–36 
 
X - Reimbursed 
Smith 
Denise 
¶ 491 
X -Untimely 
X -Untimely 
Smith 
Nicole 
¶ 492 
 
 
Sparks 
Jonathan 
¶ 493 
 
 
Stanfill 
Amy 
¶ 494 
 
 
Stephens 
Lucas 
¶ 495 
 
 
Stidham 
Crystal 
¶ 496 
 
 
Talia 
Danny 
¶ 497 
X - Freeze 
X - Freeze 
Tamayo 
Cesar 
¶ 498 
 
X - Reimbursed 
Taylor 
Michelle 
¶ 499 
 
X - Reimbursed 
Taylor 
Tonya 
¶ 500 
 
 
Tonna 
Nicholas 
¶ 501 
 
 
Trammel 
Tasha 
¶ 502 
 
X - Reimbursed 
Tressler 
Jimmy 
¶ 503 
 
 
Turnbull 
Jason 
¶ 504 
 
 
Turner 
Thomas 
¶ 505 
X -No notice 
X -No notice 
Valadez 
Reina 
¶ 506 
X - No qualifying error 
X - No qualifying error 
Valenzuela 
Juan 
¶ 507 
 
 
Vasquez 
David 
¶ 508 
 
 
Verdun 
Jessie 
¶ 509 
 
 
Villagomez 
Manuel 
¶ 510 
 
 
Viramontes 
Luis 
¶ 511 
 
 
Walker 
Norman 
¶ 512 
X - No qualifying error 
X - No qualifying error 
Wallace 
Jason 
¶ 513 
 
 
Wiggins 
Brian 
¶¶ 225–28 
 
X - Reimbursed 
Wilburn 
Cameren 
¶ 514 
X - Freeze 
X - Freeze 
Wilds 
Denise 
¶ 515 
 
X - Reimbursed 
Wilkins 
Terrence 
¶ 516 
X - Freeze 
X - Freeze 
Williams 
Zacharia 
¶ 517 
X - Freeze 
X - Freeze 
Williams 
Tyrisha 
¶ 518 
X - No qualifying error 
X - No qualifying error 
Williams 
Willie 
¶ 519 
 
 
Williamson 
Latasha 
¶ 520 
 
 
Willis 
Leanna 
¶ 521 
 
 
Willrich 
J. Michael 
¶¶ 177–86 
 
X - Reimbursed 
Wilson 
Robert L. 
¶¶ 192–94 
 
X - Reimbursed 
Wise 
Lacey 
¶ 522 
 
 
Case 3:21-md-02992-LAB-MSB   Document 126   Filed 05/25/23   PageID.1019   Page 80 of 81

 
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Plaintiff 
Claim 
Last Name 
First Name 
MCC 
Paragraphs 
Column 1: 
EFTA 
(Claim 1) 
Column 2: 
Contract 
(Claim 7)27 
Wood 
Colton 
¶ 523 
X - Freeze 
X - Freeze 
Yeats 
Matthew 
¶ 524 
X - No qualifying error 
X - No qualifying error 
Yick 
Jennifer 
¶¶ 114–26 
 
Not dismissed 
Young 
Glen 
¶ 525 
X - No qualifying error 
X - No qualifying error 
Yuan 
Alex 
¶¶ 237–45 
 
 
Zettlemoyer 
Christopher 
¶ 526 
X -No notice 
X -No notice 
Zoelle 
Jory 
¶¶ 246–49 
 
 
 
 
Case 3:21-md-02992-LAB-MSB   Document 126   Filed 05/25/23   PageID.1020   Page 81 of 81

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