Court filing

Declaration of Andrew F. Kirtley — Ex Parte Application for Leave to File Motion for Reconsideration

Summary

A declaration by Andrew F. Kirtley, Co-Lead Counsel for Plaintiffs, filed June 21, 2023 as Document 141-1 in In re Bank of America California Unemployment Benefits Litigation, case 3:21-md-02992-LAB-MSB, in the U.S. District Court for the Southern District of California. It supports Plaintiffs' Ex Parte Application for Leave to File a Motion for Reconsideration of the May 25, 2023 order (Dkt. 126) that dismissed their Unfair Competition Law claim with prejudice. Under S.D. Cal. Civ. L.R. 7.1(i)(1) it recounts the Master Consolidated Complaint (Dkt. 72), the Bank's October 1, 2021 motion to dismiss and the First Amended Master Consolidated Complaint (Dkt. 136). It states that counsel met and conferred by telephone on June 20, 2023 and that Plaintiffs seek reconsideration based on clear error.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Declaration of Andrew F. Kirtley — Ex Parte Application for Leave to File Motion for Reconsideration.” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 141-1. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2023-06-21-gov-uscourts-casd-709615-141-1-gov-uscourts-casd-709615-141-1/, SHA-256 92bfc10c3a3e35777d1deea1c40290e7f2d090fa4590e65ddaa1088c0803293f.

Search CourtListener for this docket number

Full text

Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1772 Page
1 of 4

1 JOSEPH W. COTCHETT (SBN 36324) MICHAEL RUBIN (SBN 80618)
jcotchett@cpmlegal.com mrubin@altber.com
2
BRIAN DANITZ (SBN 247403) STACEY M. LEYTON (SBN 203827)
3 bdanitz@cpmlegal.com sleyton@altber.com
4
KARIN B. SWOPE (Pro Hac Vice) MATTHEW MURRAY (SBN 271461)
kswope@cpmlegal.com mmurray@altber.com
5 ANDREW F. KIRTLEY (SBN 328023) CONNIE K. CHAN (SBN 284230)
6
akirtley@cpmlegal.com cchan@altber.com
COTCHETT, PITRE & McCARTHY, LLP ALTSHULER BERZON LLP
7 840 Malcolm Road, Suite 200 177 Post Street, Suite 300
8
Burlingame, CA 94010 San Francisco, CA 94108
Telephone: (650) 697-6000 Telephone: (415) 421-7151
9 Fax: (650) 697-0577 Fax: (415) 362-8064
10
Co-Lead Counsel for Plaintiffs and the Proposed Class
11

13 UNITED STATES DISTRICT COURT
14 SOUTHERN DISTRICT OF CALIFORNIA
15
IN RE BANK OF AMERICA Case No. 3:21-md-02992-LAB-MSB
16
CALIFORNIA UNEMPLOYMENT
17 BENEFITS LITIGATION DECLARATION OF ANDREW F.
KIRTLEY IN SUPPORT
18
PLAINTIFFS’ EX PARTE
19 APPLICATION FOR LEAVE TO
FILE MOTION FOR
20
RECONSIDERATION
21
This Document Relates to All Actions Judge: Hon. Larry Alan Burns
22

Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1773 Page
2 of 4

1 I, ANDREW F. KIRTLEY, declare as follows:

2 1. I am a partner with the law firm of Cotchett, Pitre & McCarthy, LLP,
3 Co-Lead Counsel for Plaintiffs and the proposed class in this action. I submit this

4 declaration in support of Plaintiffs’ Ex Parte Application for Leave to File a Motion

5 for Reconsideration (“Ex Parte Application”) concerning the dismissal of Plaintiffs’

6 Unfair Competition Law (“UCL”) claim with prejudice. See Dkt. 126 (“MTD Order”)

7 at 31–33, 75. I make this declaration of my own personal knowledge and, if called to

8 testify as a witness, could and would testify competently to the matters stated herein.

9 2. As required by S.D. Cal. Civ. L.R. 7.1(i)(1), this declaration sets forth
10 the material facts and circumstances surrounding (a) each prior motion, application,

11 or petition for relief that has been decided by any judge (i.e., in this case, the Bank’s

12 October 2021 motion to dismiss, the parties’ subsequent briefing of that motion, and

13 the Court’s resulting MTD Order dated May 25, 2023), and (b) any subsequent

14 motion, application, petition that is made for the same relief in whole or in part (i.e.,

15 in this case, the Ex Parte Application that accompanies this declaration). As of the

16 filing of this declaration, no new or different facts or circumstances exist which did

17 not exist at the time the above-referenced motion to dismiss, motion to dismiss

18 briefing, or the Court’s MTD Order were filed. Rather, Plaintiffs seek leave to file a

19 motion for reconsideration based on clear error.

20 3. On August 17, 2021, Plaintiffs filed their Master Consolidated
21 Complaint (“MCC”) (Dkt. 72) in this multidistrict litigation. The MCC included a

22 UCL claim challenging the Bank’s practices as “unlawful” and “unfair.” MCC

23 ¶¶575–84; see Cal. Bus. & Prof. Code §17200. In connection with their UCL claim,

24 Plaintiffs sought restitution and prospective injunctive relief, including “an order

25 making the existing Preliminary Injunction permanent.” MCC ¶584, Prayer.

26 4. On October 1, 2021, the Bank moved to dismiss Plaintiffs’ UCL claim
27 for lack of equitable jurisdiction, arguing Plaintiffs had “an adequate remedy at law.”

28
1
Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1774 Page
3 of 4

1 Dkt. 84-1 at 32:1. On November 15, 2021, Plaintiffs opposed, including on the

2 ground that their UCL claim sought prospective injunctive relief to permanently

3 enjoin the Bank’s “continued implementation of its challenged business practices.”

4 Dkt. 90 at 43:13–18 (citing, as an example, MCC ¶111). Plaintiffs also requested leave

5 to amend if the Bank’s motion were granted. Id. at 14:3–4, 50:12–15. On December

6 15, 2021, the Bank filed a reply brief that did not respond to Plaintiffs’ argument that

7 a damages remedy could not prevent future harm. See Dkt. 92 at 19:27–20:23.

8 5. On May 25, 2023, the Court ruled that Plaintiffs’ MCC “fails to state a
9 UCL claim” under Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir.

10 2020), because it “doesn’t allege inadequate legal remedies.” MTD Order at 33:8,

11 33:11–13. The Court then dismissed the UCL claim in its entirety “with prejudice,”

12 id. at 33:14–15, 75:3–4, without stating why it denied leave to amend or why the

13 dismissal was with prejudice. Elsewhere in the MTD Order, the Court allowed claims

14 that “seek prospective injunctive relief” to proceed. Id. at 46:4–5.

15 6. On June 23, 2023, Plaintiffs filed their First Amended Master
16 Consolidated Complaint (“FAMCC”) (Dkt. 136), which maintained the same

17 paragraph numbering as the MCC, while expressly noting any claims or legal

18 theories that the Court dismissed in its MTD Order. See FAMCC at 1 n.1. As relates

19 to the dismissed UCL claim, the FAMCC notes that the Court “dismissed this claim

20 with prejudice for failure to allege inadequate legal remedies,” but noted that

21 “Plaintiffs intend to seek leave to file a motion to reconsider that ruling.” FAMCC at

22 282 n.34.

23 7. On June 19, 2023, Co-Lead Counsel for Plaintiffs (Michael Rubin)
24 emailed the Bank’s counsel (James McGarry) that Plaintiffs “plan to file an

25 application for leave to file a motion for reconsideration re the UCL claim,” and that

26 Plaintiffs would like to meet and confer on that issue.

28
2
Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1775 Page
4 of 4

1 8. On June 20, 2023, Co-Lead Counsel for Plaintiffs (Michael Rubin) and
2 the Bank’s counsel (James McGarry) met and conferred by telephone regarding the

3 anticipated motion for reconsideration in an attempt to informally resolve the issue.

4 On that call, Mr. Rubin summarized the four arguments that Plaintiffs were intending

5 to advance in a motion to reconsider the dismissal of the UCL claim (i.e., the same

6 four arguments set forth in Plaintiffs’ Ex Parte Application). In response, Mr.

7 McGarry acknowledged having heard Mr. Rubin’s summary of Plaintiffs’ intended

8 arguments and indicated that he thought Plaintiffs had met their meet-and-confer

9 obligations.

11 I declare, under penalty of perjury, that the foregoing is true and correct.
12 Executed this 21st day of June 2023 at Burlingame, California.

14
/s/ Andrew F. Kirtley
15 ANDREW F. KIRTLEY
16

28
3
Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB

File and source

File: gov.uscourts.casd.709615.141.1.pdf
Size: 624,557 bytes
SHA-256: 92bfc10c3a3e35777d1deea1c40290e7f2d090fa4590e65ddaa1088c0803293f
Our copy: gov.uscourts.casd.709615.141.1.pdf
Original: PACER (login required)