Court filing
Plaintiffs Supplemental Brief Regarding Pending Motion for Reconsideration (Re:… — Bofa Ca Unemployment (Dkt. 270)
Filed April 26, 2024 in Bofa Ca Unemployment; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2024-04-26 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 270 · 2024-04-26 · Docket on CourtListener
Full text
Plaintiffs’ Supplemental Brief Regarding Pending Motion for Reconsideration
Case No. 3:21-md-02992-GPC-MSB
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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
BLAIR V. KITTLE (SBN 336367)
bkittle@cpmlegal.com
VASTI S. MONTIEL (SBN 346409)
vmontiel@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
MATTHEW MURRAY (SBN 271461)
mmurray@altber.com
CONNIE K. CHAN (SBN 284230)
cchan@altber.com
KATHERINE G. BASS (SBN 344748)
kbass@altber.com
COLIN C. 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-GPC-MSB
PLAINTIFFS’ SUPPLEMENTAL
BRIEF REGARDING PENDING
MOTION FOR RECONSIDERATION
[Re: ECF 264]
This Document Relates to All Actions
Judge: Hon. Gonzalo P. Curiel
Case 3:21-md-02992-GPC-MSB Document 270 Filed 04/26/24 PageID.2676 Page 1
of 5
Plaintiffs’ Supplemental Brief Regarding Pending Motion for Reconsideration
Case No. 3:21-md-02992-GPC-MSB
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Pursuant to the Court’s Order Directing Parties to Submit Supplemental Briefing
on Pending Motion for Reconsideration (ECF 264), Plaintiffs respond as follows:
Plaintiffs’ Unfair Competition Law (“UCL”) claim was one of the statutory claims
that supported the Court’s preliminary injunction in June 2021, which has provided
significant relief and protection to millions of Defendant Bank of America’s (the “Bank”)
EDD debit cardholders for nearly three years now. See ECF 136, First. Am. Master
Consol. Compl. (“FAMCC”), Ex. B (Prelim. Inj.); ECF 248, Pls.’ Response to Mot. to
Dissolve Prelim. Inj. at 3-5. That preliminary injunction rested in part upon Judge Vince
Chhabria’s express finding that Plaintiffs and the provisionally certified class had
established a “strong likelihood of success” on several of their claims for relief, including
under the federal Electronic Fund Transfers Act (“EFTA”) and California’s UCL.
FAMCC, Ex. B (Order Re Prelim. Inj.) ¶1.
As this Court knows, the EDD recently terminated its contract with the Bank, and
the Bank is thus winding down its EDD debit card accounts that are the subject of this
litigation. See ECF 255, Order Granting Mot. to Dissolve Prelim. Inj. at 1-2. The Bank
has represented that no Plaintiffs or class members will be able to conduct transactions on
their Bank-issued EDD debit cards and accounts after April 30, 2024, at which point the
accounts will be closed and the Bank’s only relevant continuing operations will be to
provide customer service to EDD debit cardholders seeking to obtain a check for funds
remaining in their closed account before the funds escheat to the state. See ECF 225-1,
Def.’s Mot. to Dissolve Prelim. Inj. at 3-4. Those developments were the principal reason
the parties agreed that this Court could dissolve the preliminary injunction effective
June 1, 2024. ECF 255, Order at 1-2.
Given these developments, Plaintiffs acknowledge that their UCL claim seeking
prospective injunctive relief against the Bank on behalf of EDD debit cardholders will
become moot as of June 1, 2024, assuming the Bank’s winding down of its EDD debit
card accounts follows the schedule set forth above. Cf. FAMCC ¶584 (seeking prospective
injunctive relief “(a) prohibiting the Bank from continuing its unfair and unlawful business
Case 3:21-md-02992-GPC-MSB Document 270 Filed 04/26/24 PageID.2677 Page 2
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Plaintiffs’ Supplemental Brief Regarding Pending Motion for Reconsideration
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practices, and (b) requiring the Bank to take reasonable measures to prevent future
unauthorized use of EDD Debit Cards and Accounts, and requiring the Bank to ensure
timely and adequate processing of Cardholders’ [unauthorized transaction] claims”).
However, neither those developments nor any others have any effect on the continuing
viability of Plaintiffs’ UCL “unfair” prong claim seeking equitable restitution and
disgorgement, which remains a well-pleaded claim for all the reasons argued in Plaintiffs’
pending motion for reconsideration. See ECF 151, Mot. for Reconsid. at 6-9; ECF 161,
Reply ISO Mot. for Reconsid. at 7-9; FAMCC ¶¶577-578, 584. As Plaintiffs explained in
that reconsideration motion, Plaintiffs continue to seek the equitable remedy of restitution
under the UCL to remedy the Bank’s challenged practices on the theory that, even if the
Court ultimately concludes that the practices alleged in the FAMCC were not unlawful,
the Court could still find them to be actionable under the UCL as unfair business practices.
In that circumstance, Plaintiffs would have no legal remedies, and their only available
remedy would be equitable restitution and disgorgement.
For these reasons, while Plaintiffs’ UCL claim seeking prospective injunctive relief
against the Bank on behalf of EDD debit cardholders will likely become moot as of June 1,
2024, Plaintiffs reiterate that the Court should grant reconsideration to permit Plaintiffs’
alternative claim under the UCL that they are entitled to pursue equitable restitution
under the UCL’s “unfair” business practice prong.
Respectfully submitted,
Dated: April 26, 2024
COTCHETT, PITRE & McCARTHY, LLP
By: /s/ Andrew F. Kirtley
ANDREW F. KIRTLEY
Co-Lead Counsel for Plaintiffs and the
Proposed Class
Case 3:21-md-02992-GPC-MSB Document 270 Filed 04/26/24 PageID.2678 Page 3
of 5
Plaintiffs’ Supplemental Brief Regarding Pending Motion for Reconsideration
Case No. 3:21-md-02992-GPC-MSB
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Dated: April 26, 2024
ALTSHULER BERZON LLP
By: /s/ Michael Rubin
MICHAEL RUBIN
Co-Lead Counsel for Plaintiffs and the
Proposed Class
Case 3:21-md-02992-GPC-MSB Document 270 Filed 04/26/24 PageID.2679 Page 4
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Plaintiffs’ Supplemental Brief Regarding Pending Motion for Reconsideration
Case No. 3:21-md-02992-GPC-MSB
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SIGNATURE CERTIFICATION
Pursuant to Section 2(f)(4) of this Court’s Electronic Case Filing Administrative
Policies and Procedures Manual, I certify that the content of this document is acceptable
to all signatories, and that all signatories authorized their electronic signatures to be
affixed to this document.
/s/ Andrew F. Kirtley
ANDREW F. KIRTLEY
Case 3:21-md-02992-GPC-MSB Document 270 Filed 04/26/24 PageID.2680 Page 5
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