Reply to Response to Motion re 146 Motion to Dismiss — In re Bank of America California Unemployment Benefits Litigation (Dkt. 175, S.D. Cal. No. 3:21-md-02992)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 175 · 2023-10-02 · Docket on CourtListener

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BANA’S REPLY IN SUPPORT OF PARTIAL MTD FAMCC  
CASE NO. 21-MD-02992-LAB-MSB 
 
  
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JAMES W. MCGARRY (admitted pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
YVONNE W. CHAN (admitted pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 21-MD-02992-LAB-MSB 
DEFENDANT BANK OF 
AMERICA, N.A.’S REPLY IN 
SUPPORT OF PARTIAL MOTION 
TO DISMISS THE FIRST 
AMENDED MASTER 
CONSOLIDATED COMPLAINT 
Date: 
October 2, 2023 
Time: 
11:30 a.m. PST 
Ctrm: 
14A – 14th Floor 
Judge: 
Hon. Larry A. Burns 
 
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BANA’S REPLY IN SUPPORT OF PARTIAL MTD FAMCC 
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BANA’s Partial Motion to Dismiss (Dkt. 146-1) (“Partial MTD”) included 
three separate arguments regarding defects in Plaintiffs’ FAMCC.1  First, BANA 
argued that because Plaintiffs chose not to amend certain claims and theories 
dismissed by the Court’s MTD Order, those claims and theories should now be 
dismissed with prejudice.  Plaintiffs’ Opposition (Dkt. 171) (“Opposition”) offers no 
response, and therefore concedes that dismissal with prejudice is appropriate. 
Second, BANA argued that Plaintiff Jennifer Yick’s amended allegation that she has 
been reimbursed by BANA dooms her contract claim for the reasons articulated in 
the Court’s MTD Order.  Plaintiffs’ Opposition offers no response to this argument 
either, conceding dismissal with prejudice.  Third, BANA argued that that the “freeze 
only” individual Plaintiffs’ amended allegations still fail to allege a “qualifying error” 
as required to state an EFTA claim.  This is the only argument to which Plaintiffs’ 
Opposition responds.  But the response fails.  Plaintiffs’ interpretation of “qualifying 
error” to include general requests for information is incorrect, and Plaintiffs point to 
no authority to support their reading of the statute.  For these reasons, and as stated 
in BANA’s Partial MTD, the claims in the FAMCC identified in the Partial MTD 
should be dismissed with prejudice. 
I. 
PLAINTIFFS CONCEDE THE ARGUMENTS TO WHICH THEY DO NOT 
RESPOND. 
Plaintiffs’ Opposition does not address two of the three arguments raised by 
BANA’s Partial MTD.  Specifically, Plaintiffs do not refute that (1) the dismissed 
claims that Plaintiffs failed to amend should be dismissed with prejudice (Partial 
MTD at 5), or that (2) Plaintiff Yick’s Section 9 and 11 contract claim should be 
dismissed with prejudice as a result of her amended allegation that she has been 
reimbursed by BANA (id. at 11).   
 
1 Unless otherwise stated, all defined terms herein have the same meaning as in 
BANA’s Partial MTD. 
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BANA’S REPLY IN SUPPORT OF PARTIAL MTD FAMCC 
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Failure to oppose an argument serves as a concession.  See, e.g., New York 
Marine and Gen. Ins. Co. v. Peters, No. 3:21-cv-1692 W (WVG), 2022 WL 1104741, 
at *1 (S.D. Cal. Apr. 13, 2022) (“Having failed to oppose [defendants’] first two 
grounds for dismissal, [plaintiff] concedes that his Complaint fails to state a claim 
under Rule 12(b)(6)); United States ex rel. Jones v. Sutter Health, No. 18-cv-02067-
LHK, 2021 WL 3665939, at *5 (N.D. Cal. Aug. 18, 2021) (failure to oppose 
arguments in motion to dismiss conceded those arguments); Tapia v. Wells Fargo 
Bank, N.A., No. CV 15-03922 DDP (AJWX), 2015 WL 4650066, at *2 (C.D. Cal. 
Aug. 5, 2015) (arguments to which no response is supplied are deemed conceded); 
Hall v. Mortg. Inv’rs Grp., No. 2:11-CV-00952-JAM-GGH, 2011 WL 4374995, at 
*5 (E.D. Cal. Sep. 16, 2011) (failure to oppose motion to dismiss serves as 
concession). 
Accordingly, Plaintiffs concede that the FAMCC fails to state a claim with 
respect to the following claims, which should now be dismissed with prejudice:2 
• Claim 2: Claims for violations of the California Consumer Privacy Act 
based on Plaintiffs’ theory regarding unsecure data collection and storage; 
• Claim 3: Claims for violation of the California Customer Records Act; 
• Claim 5: Claims for negligence per se based on violations of the California 
Financial Information Privacy Act and California Customer Records Act; 
and 
• Claim 7: Claims for breach of contract as to all Plaintiffs except for the 
Section 9 and 11 theories for Plaintiffs Smith, Burns and Horath (as 
identified in Column E of Appendix A to the Partial MTD), including all 
breach of contract claims for Plaintiff Yick. 
 
2 As noted in the Partial MTD, the claims previously dismissed with prejudice in 
the MTD Order require no response from BANA.  See Partial MTD at 6 n. 1. 
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II. 
PLAINTIFFS’ INTERPRETATION 
OF EFTA’S “QUALIFYING ERROR” 
REQUIREMENT IS WRONG. 
The only argument in the Partial MTD to which Plaintiffs responded was 
Section II.A, that Plaintiffs’ amendments in the FAMCC are insufficient to state a 
claim under EFTA for individual Plaintiffs who only allege account freezes or 
restrictions.  Partial MTD at 9.  But Plaintiffs misinterpret EFTA, arguing that 
requests for additional information and clarification “surrounding the issues related 
to [the individual Plaintiffs’] accounts, including any determination regarding 
missing deposits and failure to credit amounts to the accounts as a result of a freeze 
or restriction” constitutes reporting of “errors” under EFTA.  Opposition at 6.  
Plaintiffs’ argument is not only wrong as a matter of statutory construction, it is made 
without support of any kind. 
EFTA and Regulation E clearly define a “qualifying error” for purposes of the 
statute.  See 15 U.S.C. § 1693(f); 12 C.F.R. § 1005.11(a).  These definitions plainly 
state that an information request must concern an electronic funds transfer, to 
qualify as an error under the statute.  See Partial MTD at 9–10.  Plaintiffs 
acknowledge these unambiguous definitions in their Opposition, see Opposition at 5, 
and concede that an account freeze alone does not constitute a “qualifying error” 
under EFTA, as the Court previously held in its MTD Order, id. at 4.  Despite that 
concession, Plaintiffs nevertheless insist that their inquiries regarding frozen 
accounts fall under the definition of “qualifying error,” because, they say, the 
“issues” created by their frozen accounts included expected benefits from EDD that 
could not be deposited, as well as previously-deposited benefits that could not be 
accessed.  Id. at 5–6.  But the inability to make an electronic funds transfer is not, in 
itself, an electronic funds transfer that could form the basis of a qualifying error, and 
questions about access to funds that were previously deposited are not questions 
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about the deposit itself.3  To interpret EFTA to encompass all questions about 
previously-deposited funds would read out of the statute the requirement that an 
information request must relate to an  “electronic funds transfer” in order to constitute 
an error.  Plaintiffs identify no authority to support their position that any question 
about access to funds or the ability to make a transfer is a “qualifying error,” simply 
stating, without explanation, that BANA’s authority, Hardin v. Bank of Am., N.A., is 
not relevant to this dispute.  See Opposition at 6, citing Hardin v. Bank of America, 
N.A., 2022 WL 3568568, at *3 (E.D. Mich. Aug. 18, 2022).  Plaintiffs are wrong.  
Hardin’s holding that “requests for additional information or clarification apply only 
for requests ‘concerning an electronic fund transfer’ . . . . and do not include 
‘routine inquir[ies] about the consumer’s account balance,’ among other 
‘recordkeeping’ requests” is directly on point, and consistent with EFTA, 
Regulation E, and the MTD Order. 
The “freeze only” individual Plaintiffs’ amendments fail to state a claim under 
EFTA.  Those individual Plaintiffs’ EFTA claims (as identified in Column D of 
Appendix A to the Partial MTD) should be dismissed with prejudice. 
 
 
 
 
 
 
 
 
 
Dated:  September 25, 2023 
Respectfully submitted, 
 
 
 
 
By: s/ James W. McGarry 
 
 
 
 
 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA  02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
3 Nor did any of the amending plaintiffs (as identified in Column D of Appendix A 
to the Partial MTD) allege that they notified BANA of “[t]he omission of an 
electronic funds transfer from a periodic statement.”   MTD Order at 15 (emphasis 
added); compare, e.g., FAMCC ¶ 358 (individual Plaintiff Franks alleged that he 
“checked his Account and noticed that he had not received his funds,” and 
subsequently “reported the [alleged] fraud to Bank of America)”, with id. ¶ 308 
(individual Plaintiff Berlt merely alleged that he “requested additional information 
from Bank of America as to why his account was restricted”). 
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THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA  02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on September 25, 2023.  I further certify that all 
participants in the case are registered CM/ECF users and that service will be 
accomplished by the CM/ECF system.  I certify under penalty of perjury that the 
foregoing is true and correct. 
 
 
Executed: 
September 25, 2023 
 
s/ James W. McGarry 
 
 
 
JAMES W. McGARRY 
 
 
 
 
 
 
Case 3:21-md-02992-GPC-MSB     Document 175     Filed 09/25/23     PageID.1951     Page 7
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