Declaration Declaration of Joshua B. Swigart — Bofa Ca Unemployment (Dkt. 311.2)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 311-2 · 2024-09-27 · Docket on CourtListener

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Declaration of J. Swigart In Support of Motion of 
Individual Plaintiffs’ Motion to Stay Proceedings 
CASE No: 3:21-md-02992-LAB-MSB 
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Joshua B. Swigart (SBN 225557) 
Josh@SwigartLawGroup.com 
SWIGART LAW GROUP, APC 
2221 Camino del Rio S, Ste 308 
San Diego, CA  92108 
P: 866-219-3343 
F: 866-219-8344 
Liaison Counsel for Individual Plaintiffs 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
CASE: 3:21-md-02992-GPC-MSB 
DECLARATION OF JOSHUA B. 
SWIGART IN SUPPORT OF 
MOTION TO STAY INDIVIDUAL 
PLAINTIFFS’ CASES 
Date: September 27, 2024 
Time: 1:30 p.m. 
Dept.: C 
Judge:  Hon. Gonzalo P. Curiel 
IN RE BANK OF AMERICA 
CALIFORNIA 
UNEMPLOYMENT BENEFITS 
LITIGATION      
This Document Relates to All 
Actions 
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Declaration of J. Swigart In Support of Motion of 
Individual Plaintiffs’ Motion to Stay Proceedings 
CASE No: 3:21-md-02992-LAB-MSB 
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DECLARATION OF JOSHUA B. SWIGART 
I, JOSHUA B. SWIGART, declare and state as follows:  
1. I am an attorney duly licensed to practice law before all of the courts of the
State of California. I am the founder and managing attorney for Swigart Law
Group, APC.
2. I am licensed to practice law in California, Washington, Michigan, Washington
D.C., and Wisconsin.
3. I have personal knowledge of the matters set forth herein, and I could and
would competently testify under oath to the information provided herein.
4. I make this declaration in support of Individual Plaintiff’s Motion to Stay the
remaining unstayed individual matters.
5. I am co-counsel for the Plaintiffs named in the following actions, which have
now been consolidated as a result of this Court’s July 19, 2021 order (“the July
2021 Order”)
Case 
Date Filed 
Meza v. Bank of America, N.A. No. 
21cv484 
March 18, 2021 
Brotman v. Bank of America, N.A. No. 
21-cv-00520
March 24, 2021 
Morrell v. Bank of America, N.A. No. 21-
cv-00542
March 26, 2021 
Payton v. Bank of America, N.A.  No. 21-
cv-00644
April 13, 2021 
Talia v. Bank of America, N.A. No. 21-
cv-00676
April 15, 2021 
Abarr et al v. Bank of America, N.A. No. 
21-cv-01203
July 1, 2021 
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Declaration of J. Swigart In Support of Motion of  
Individual Plaintiffs’ Motion to Stay Proceedings                                                                                                     CASE No: 3:21-md-02992-LAB-MSB 
 
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Alvarez v. Bank of America, N.A. No. 
21-cv-01176 
June 7, 2021 
Abila v. Bank of America, N.A. No. 21-
cv-01766 
October 13, 2021 
 
6. As a result of the July 2021 Order, my co-counsel Daniel G. Shay was 
appointed Interim-Liaison Counsel for the Individual Plaintiffs.  After this order 
was entered, I caused to be filed an ex parte application to be appointed as 
Interim- Co-Liaison Counsel for the Individual Plaintiffs, along with attorney 
Shay.  The Court was gracious enough to grant my request. 
7. Pursuant to the Court’s July 20, 2021 Case Management Order (July 2021 
Order), my responsibilities include: 
(a) working with Class Counsel to delegate work responsibilities to other 
plaintiffs’ counsel in a fair and orderly manner;  
(b) monitoring the activities of all plaintiffs’ counsel to ensure that plaintiffs’ 
pretrial preparation is conducted effectively, efficiently, and economically, that 
schedules are met, and that unnecessary expenditures of time and expense are 
avoided;  
(c) being available for communications to and from this Court, including by 
distributing orders and other directions from the Court to counsel;  
(d) providing plaintiffs’ counsel (as required by applicable Court rules) with the 
local rules, standing orders, and guidelines of the U.S. District Court for the 
Southern District of California, standing orders of the Court, and the rules of the 
undersigned District Judge and Magistrate Judge Berg, and ensuring that any 
updates and changes to the local rules, standing orders, and guidelines of this 
District or the Court are timely communicated to counsel as needed;  
(e) working with all plaintiffs’ counsel where it is appropriate and relevant to their 
responsibilities;  
(f) creating and maintaining a master service list of all Class Action Parties and 
their respective counsel, and promptly advising the Court and Defendant’s counsel 
of any changes to the same;  
(g) distributing to counsel, as appropriate, any orders, notices, and correspondence 
from the Court that are not electronically filed, as well as any discovery, pleadings, 
correspondence, or other documents from Defendant’s counsel that are not 
electronically filed;  
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Declaration of J. Swigart In Support of Motion of  
Individual Plaintiffs’ Motion to Stay Proceedings                                                                                                     CASE No: 3:21-md-02992-LAB-MSB 
 
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(h) for Class Interim Liaison counsel only, obtaining and maintaining time records 
for class plaintiffs’ counsel, and preparing and submitting related reports to the 
Court as requested;  
(i) communicating with the Court as delegated by Interim Co-Lead Counsel; and  
(j) participating in any settlement conferences together with Interim Co-Lead 
Counsel. 
8. I reviewed the July 2021 Order carefully and it was made clear to me by Interim 
Co-Lead Counsel on more than one occasion that Interim Co-Liaison counsel 
was not permitted to conduct discovery.  This was based on the following 
language contained in the July 2021 Order. 
No plaintiff may make any request for or response to discovery, initiate or 
file any other pretrial or trial proceedings (except that individual plaintiffs 
not already involved in a member case may file new complaints), or file or 
respond to any dispositive motion except through Interim Co-Lead Counsel. 
9. In accordance with July 2021 Order, Interim Co-Lead Counsel has been solely 
responsible for drafting and serving all discovery in this case. They have 
received and reviewed responses, and have engaged in numerous meet and 
confer sessions to address discovery deficiencies, including issues related to 
document requests. This process has entirely excluded me and any other Interim 
Co-Liaison Counsel for the Individual Plaintiffs from participating in discovery 
activities. 
10. My understanding is that Defendant produced 282,442 documents containing 
883,905 pages.  I was only permitted to review a portion of these documents as 
they pertained to the BANA files for my clients.  Out of the 282,442 
documents, I was only permitted to view just over 4,000 documents.  Less than 
2%.  I understand there are nearly 850,000 pages that my office still needs to 
review.  
11. I have not been allowed to be involved in the strategy, drafting, service, or the 
scope and manner of any discovery, or been included in any meet and confer 
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Declaration of J. Swigart In Support of Motion of  
Individual Plaintiffs’ Motion to Stay Proceedings                                                                                                     CASE No: 3:21-md-02992-LAB-MSB 
 
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process between Interim Co-Lead Counsel and Defendant as a result July 2021 
Order being in place.  
12. After requesting to be served copies of all deposition notices served on 
Defendant, I have been able to attend and observe all BANA witness 
depositions, but not afforded the opportunity to request certain topics of 
testimony or ask any follow up questions. 
13. This has not been of particular concern, as the Court, through Magistrate Judge 
Berg’s chambers has continually held status conferences regarding the progress 
of this action.  One particular point of contention was the number of depositions 
that would be allowed, prior to class certification.  A total of five (5) individual 
plaintiffs have had their depositions taken. 
14. Defendant has served written discovery requests on all non-stayed Individual 
Plaintiffs, which have been responded to and many supplemented after the meet 
and confer process. 
15. After the issuance of the Court’s Amended Scheduling Order setting the 
briefing schedule for class certification to be completed by November 21, 2024 
and fact discovery (for both the class and the non-stayed individual actions), 
Defendant is demanding the depositions of the remaining individual plaintiffs, 
(in excess of approximately 120) before the discovery cutoff.  Attached hereto 
as Exhibit A is the deposition notice of 128 Individual Plaintiffs all to take 
place before the discovery cutoff. 
16. The discovery cutoff date set for December 12, 2024, which would affect only 
the non-stayed Individual Plaintiffs, will not allow for the determination of 
class certification before that deadline runs.  All non-stayed Individual Plaintiffs 
(who are currently putative class members) will need to have their depositions 
taken (a burdensome process for each Plaintiff and counsel to complete in such 
a short time) and will not allow each Individual Plaintiff to consider the results 
of any class certification motion before the depositions take place. 
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Declaration of J. Swigart In Support of Motion of 
Individual Plaintiffs’ Motion to Stay Proceedings 
CASE No: 3:21-md-02992-LAB-MSB 
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17. Additionally, I represent a number of Individual Plaintiffs.  A number of those
Individual Plaintiffs’ actions have been stayed, while an equal amount are
subject to the consolidated master complaint filed and the current discovery
deadlines.
18. For the purpose of equal treatment of all Individual Plaintiffs I would request all
Individual Plaintiffs be stayed pending the outcome of the class action.  This
will allow each putative class member to be fully informed if and when the
class is certified.  They will have the option to remain in the class, or opt out.
Additionally, the discovery process was streamlined by the court early on, only
allowing Interim-Lead Counsel to conduct discovery (which is focused on the
class allegations).  Holding the current discovery cut-off to apply to all non-
stayed Individual Plaintiffs will have the result of denying them the opportunity
to 1) review the discovery that has thus been produced; 2) propound their own
written discovery; 3) notice and take required depositions; and 4) properly
prepare their individual cases for trial.
I declare under the penalty of perjury of the laws of California and the United 
States that the foregoing is true and correct.   
Respectfully submitted, 
Date:  August 13, 2024 
SWIGART LAW GROUP  
By:  s/ Joshua Swigart  
Joshua B. Swigart, Esq. 
Josh@SwigartLawGroup.com 
Liaison Counsel for Individual Plaintiffs 
Case 3:21-md-02992-GPC-MSB     Document 311-2     Filed 08/13/24     PageID.3877     Page
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