Response to Motion re 225 Motion to Set Aside /Dissolve Preliminary — In re BofA Unemployment Litigation (Dkt. 248)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 248 · 2024-03-26 · Docket on CourtListener

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PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
JOSEPH W. COTCHETT (SBN 36324) 
jcotchett@cpmlegal.com 
BRIAN DANITZ (SBN 247403) 
bdanitz@cpmlegal.com 
KARIN B. SWOPE (Pro Hac Vice) 
kswope@cpmlegal.com 
ANDREW F. KIRTLEY (SBN 328023) 
akirtley@cpmlegal.com 
COTCHETT, PITRE & McCARTHY, LLP 
840 Malcolm Road, Suite 200 
Burlingame, CA 94010 
Telephone: (650) 697-6000 
Fax: (650) 697-0577 
MICHAEL RUBIN (SBN 80618) 
mrubin@altber.com 
STACEY M. LEYTON (SBN 203827) 
sleyton@altber.com 
CONNIE K. CHAN (SBN 284230) 
cchan@altber.com 
COLIN JONES (SBN 354301) 
cjones@altber.com 
ALTSHULER BERZON LLP 
177 Post Street, Suite 300 
San Francisco, CA 94108 
Telephone: (415) 421-7151 
Fax: (415) 362-8064 
 
Co-Lead Counsel for Plaintiffs and the Proposed Class  
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-LAB-MSB 
 
PLAINTIFFS’ RESPONSE TO 
MOTION TO DISSOLVE 
PRELIMINARY INJUNCTION 
This Document Relates to All Actions 
 
Judge: 
Hon. Larry Alan Burns 
 
REDACTED VERSION FOR 
PUBLIC FILING 
 
 
Case 3:21-md-02992-GPC-MSB     Document 248     Filed 03/26/24     PageID.2487     Page 1
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1 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
 
On February 29, 2024, defendant Bank of America (“Bank”) filed a motion to 
dissolve the June 2, 2021 preliminary injunction issued by the Hon. Vince Chhabria 
in Yick v. Bank of America, N.A., Case No. 21-cv-00376-VC (N.D. Cal.) (“Yick”), the 
initial set of consolidated consumer class action lawsuits that resulted in this 
multidistrict litigation.  
The Bank does not dispute that for the past 2-1/2 years, Judge Chhabria’s 
carefully crafted preliminary injunction has provided crucial economic relief and 
procedural protections to the hundreds of thousands of unemployed Californians in 
the provisionally certified class of Bank of America EDD debit cardholders who 
contacted the Bank during the pandemic to report an unauthorized transaction on their 
account.1 The Bank also does not challenge the validity of any of the factual findings 
or legal analysis underlying Judge Chhabria’s issuance of injunctive relief. Instead, 
after a self-justifying historical narrative that completely ignores the reasons why 
Judge Chhabria found that plaintiffs had “a strong likelihood of success” on the merits 
of their claims under federal and state law, that class members were suffering 
irreparable injury and that the equities favored entry of an injunction, the Bank seeks 
relief from the ongoing injunction based on the fact that in December 2023, the 
California Employment Development Department (“EDD”) replaced the Bank with a 
different financial institution (Money Network) to administer public benefits 
payments to members of the provisionally certified class, thereby setting in motion a 
series of events that will inevitably moot most of the provisions in the preliminary 
injunction.  
 
1 Because the Bank did not include a copy of the preliminary injunction orders 
with its motion, plaintiffs attach a copy of Judge Chhabria’s May 1, 2021 Order re 
Preliminary Injunction (Yick ECF 89), which held that plaintiffs were entitled to 
injunctive relief and which provisionally certified the requested class (Appendix A); 
and a copy of the June 2, 2021 Preliminary Injunction itself (Yick ECF 103) 
(Appendix B), the specific terms of which the parties negotiated with the assistance 
of a magistrate judge, pursuant to Judge Chhabria’s direction. 
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2 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Plaintiffs do not oppose the Bank’s request to dissolve the injunction effective 
June 1, 2024 in light of EDD’s termination of its longstanding contract with the Bank, 
given the Bank’s representation that EDD has not only stopped funding all 
provisionally certified class members’ Bank of America-branded EDD debit cards, 
but has also directed the Bank to close those cardholders’ existing EDD debit card 
accounts – after providing the required notice to each affected cardholder – and to 
inform each cardholder with an existing account balance as of April 30, 2024 how to 
recover any funds remaining in their account before they would escheat to the state.2 
Plaintiffs write separately to highlight that their non-opposition rests upon two 
understandings that are not expressly addressed in the Bank’s motion or proposed 
order. 
First, plaintiffs understand that the Court’s dissolution of the June 2021 
injunction will not preclude them from later pursuing appropriate relief if they 
determine that any of the Bank’s representations about its compliance with the 
preliminary injunction were inaccurate or that the Bank failed to comply with its 
material obligations under the injunction in any significant respect.3 Although the 
 
2 In particular, the Bank has represented that after the EDD fired the Bank in 
December 2023, terminating the series of contracts going back to 2010 and 
transferring responsibility for administration of the EDD benefits program to Money 
Network: (1) EDD in January 2024 began paying all public benefits that had been 
funded through Bank of America-branded EDD prepaid debit cards through Money 
Network prepaid debit cards instead; (2) EDD on February 15, 2024 stopped paying 
any benefits to claimants on their Bank of America-branded prepaid debit cards; (3) 
EDD has agreed that the Bank of America-branded prepaid EDD debit cards will be 
deactivated and will no longer be useable by provisionally certified class members 
after April 15, 2024; (4) EDD has agreed that all Bank of America-branded EDD 
prepaid debit card accounts with fund balances will be closed on April 30, 2024; and 
(5) the Bank has begun the process of sending notices to its EDD debit account 
cardholders informing them of these developments and informing them how to obtain 
a check for any balance remaining in their accounts after April 30, 2024, before those 
funds escheat to the State. 
3 Contrary to the Bank’s representation, those obligations are not limited to 
operating its Claims and Fraud Call Centers 24 hours per day/seven days per week 
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3 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Bank’s Rule 30(b)(6) designee on preliminary injunction compliance testified that the 
Bank has complied with each of its obligations under the June 2021 injunction, that 
designee did not have personal knowledge or a detailed understanding of the Bank’s 
procedures for processing EDD cardholders’ claims either before or after the 
preliminary injunction. Plaintiffs are therefore continuing to pursue discovery into the 
Bank’s past compliance with the preliminary injunction and into EDD’s termination 
of its relationship with the Bank. 
Second, plaintiffs further understand that the Court’s dissolution of the 
injunction will not preclude plaintiffs from later seeking prevailing party attorneys’ 
fees and expenses under applicable state and federal law for their successful efforts in 
pursuing, obtaining, overseeing, and evaluating compliance with the preliminary 
injunction – although we recognize that any such prevailing party fees and expenses 
will likely be subsumed within a broader award of statutory fees and expenses for the 
case as a whole once judgment is entered in any or all plaintiffs’ favor. 
The June 2021 preliminary injunction has been enormously successful in 
reducing the ongoing irreparable harm to the uniquely vulnerable class of unemployed 
workers whose claims are the focus of this MDL litigation. According to the Bank’s 
written discovery responses and the testimony of its designated representatives during 
the recent Rule 30(b)(6) depositions, the Bank has implemented the following 
changes in its policies and practices since June 2021, each of which was required by 
the injunction: 
* The Bank has stopped using its automated Claim Fraud Filter as a mechanism 
for investigating or denying claimants’ unauthorized-transaction claims, and has 
stopped considering the results of its automated Claim Fraud Filter to freeze the EDD 
benefits account of any claimant. See Prelim. Inj. ¶ 1, 3.  
 
and sending weekly and monthly notices to certain cardholders. Compare Mot. at 6 
with Appendix B ¶¶ 1, 2, 3, 6, 10 (other continuing obligations). 
Case 3:21-md-02992-GPC-MSB     Document 248     Filed 03/26/24     PageID.2490     Page 4
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4 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
* The Bank has stopped denying unauthorized-transaction claims and has 
stopped denying provisional or permanent credit to claimants in those circumstances 
where the Bank failed to conduct and complete an investigation into the alleged 
unauthorized transaction as required by EFTA and its Regulation E. See Prelim. Inj. 
¶ 2.a. 
* The Bank has stopped denying or closing unauthorized-transaction claims 
without providing the affected claimants a written explanation of the findings that 
resulted from its EFTA- and Regulation E investigations. See Prelim. Inj. ¶ 2.b. 
* The Bank has reopened the claims it had closed or denied based solely upon 
the results of its Claim Fraud Filter and, on request, has reopened other claims that it 
closed or denied after January 1, 2020. See Prelim. Inj. ¶¶ 4(a), 6.4 
* The Bank has provided a series of notices to approximately 
 members 
of the provisionally certified class, informing them what the Bank was doing in 
response to the injunction, what rights to reopen claims the injunction provided, and 
how to authenticate their identities if necessary to regain access to their funds. See 
Prelim. Inj. ¶¶ 4(b), 7, 11. 
* The Bank has created and has informed the claimants about new, dedicated 
toll-free telephone numbers that enabled claimants to reach the Bank’s customer 
service representatives and claims analysts (“CSRs”) directly at the Banks’ Claims 
 
4 In December 2021, just six months after the preliminary injunction took effect, 
the Bank reported that “
 
” pursuant to the preliminary injunction. 
Dec. 5, 2021 Letter from Bank’s Counsel at 2. Since then, the Bank has produced 
data indicating that substantially more money has been returned to class members 
since the preliminary injunction was entered. Although the Bank has repaid well 
over $
 to members of the provisionally certified class thus far, that 
amount remains far less than the Bank is legally required to provide under EFTA, 
see 15 U.S.C. § 1693f(e) (providing for treble damages), and under other applicable 
statutory and common law provisions, see, e.g., Cal. Civil Code § 3294 (providing 
for punitive damages). 
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5 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Initiation Call Center and at its separate Fraud Call Center, both of which centers the 
Bank (eventually) staffed 24/7 with enough trained CSRs (it contends) to comply with 
the injunction’s requirement “that the average speed to answer calls from Class 
Members to these centers is no more than five minutes, 90% of the time.” Prelim. Inj. 
¶¶ 9-10.5 
In light of those developments, and because there can be no new claims of 
unauthorized transactions made on accounts once they have been closed or can no 
longer be accessed, plaintiffs agree that after April 30, 2024, the provisions of the 
preliminary injunction requiring the Bank to properly handle unauthorized-
transaction claims on those accounts, to staff the Claim Initiation and Fraud Call 
Centers 24/7, and to give claimants notice of their rights under the injunction will no 
longer be required. Plaintiffs also agree that the Bank’s proposed June 1, 2024 date 
for dissolving the Bank’s remaining obligations under the injunction seems 
reasonable, because by then all accounts will have been closed for at least one month 
and there will have been no card usage for at least 45 days. See Mot. at 6. 
With the twin understandings set forth above (reserving the right to continue to 
pursue compliance discovery and to seek appropriate relief for non-compliance, if 
shown; and to seek statutory attorneys’ fees and expenses for all reasonable efforts 
relating to securing, monitoring, and enforcing the preliminary injunction), plaintiffs 
do not oppose the specific terms of the proposed order submitted by the Bank in 
support of its motion. 
/ / / 
 
5 Data produced by the Bank through September 2023 indicates that the Bank 
complied with the requirements of ¶ 10 of the preliminary injunction during 
 
 weeks after it took effect.  The Bank’s performance falls short of strict 
compliance, but it was nonetheless a dramatic improvement and provided significant 
benefit to the EDD debit cardholders who placed 
 calls to the 
Claims Initiation and Fraud Call Centers during that period.  
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6 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
Respectfully submitted, 
Dated: March 26, 2024 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
ANDREW F. KIRTLEY 
 
Dated: March 26, 2024 
ALTSHULER BERZON LLP 
By: /s/  Michael Rubin 
 
MICHAEL RUBIN  
STACEY M. LEYTON  
CONNIE K. CHAN 
COLIN JONES 
 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class 
 
 
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7 
PLAINTIFFS’ RESPONSE TO MOTION TO DISSOLVE PRELIMINARY 
INJUNCTION 
Case No.: 3:21-md-02992-LAB-
MSB 
 
SIGNATURE CERTIFICATION 
Pursuant to Section 2(f)(4) of this Court’s Electronic Case Filing 
Administrative Policies and Procedures Manual, I, Michael Rubin, hereby certify that 
the content of this document is acceptable to all the signatories herein and that I have 
obtained counsel’s authorization to affix their electronic signatures to this document. 
 
 
 
 
 
 
 
/s/ Michael Rubin  
 
 
 
 
 
 
 
         
MICHAEL RUBIN 
 
 
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APPENDIX A
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APPENDIX B
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