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**DOCUMENT WITHDRAWN BY FILER PER 363 **RESPONSE in Opposition re 347 MOTION to File… — Bofa Ca Unemployment (Dkt. 360)
No. 3:21-md-02992-GPC-MSB · Doc. 360 · Docket on CourtListener
Summary
Plaintiffs' opposition to Bank of America, N.A.'s motion to seal documents filed in opposition to class certification, filed November 7, 2024 as Doc. 360 in In re Bank of America California Unemployment Benefits Litigation, No. 3:21-md-02992-GPC-MSB, in the U.S. District Court for the Southern District of California. The plaintiffs argue that the compelling reasons standard applies and that the bank's request to seal 70 out of 122 defense exhibits in their entirety, plus parts of its brief and expert declarations, is overbroad. They do not oppose sealing cardholder personal identifying information and take no position on the Remediation Plan under the OCC and CFPB consent orders. They ask the court to deny the motion in part and direct the bank to identify specific portions to redact. The 9-page filing is signed by Connie K. Chan.
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Case 3:21-md-02992-GPC-MSB Document 360 Filed 11/07/24 PageID.12108 Page
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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
KARIN B. SWOPE (Pro Hac Vice) CONNIE K. CHAN (SBN 284230)
4 kswope@cpmlegal.com cchan@altber.com
5 BLAIR V. KITTLE (SBN 336367) KATHERINE G. BASS (SBN 344748)
bkittle@cpmlegal.com kbass@altber.com
6 VASTI S. MONTIEL (SBN 346409) COLIN C. JONES (SBN 354301)
7 vmontiel@cpmlegal.com cjones@altber.com
COTCHETT, PITRE & McCARTHY, LLP ALTSHULER BERZON LLP
8 840 Malcolm Road, Suite 200 177 Post Street, Suite 300
9 Burlingame, CA 94010 San Francisco, CA 94108
Telephone: (650) 697-6000 Telephone: (415) 421-7151
10 Fax: (650) 697-0577 Fax: (415) 362-8064
11
Co-Lead Counsel for Plaintiffs and the Proposed Class
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13
14 UNITED STATES DISTRICT COURT
15 SOUTHERN DISTRICT OF CALIFORNIA
16
IN RE BANK OF AMERICA Case No. 3:21-md-02992-GPC-MSB
17 CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION OPPOSITION TO DEFENDANT’S
18
MOTION TO SEAL DOCUMENTS
19 FILED IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR CLASS
20
CERTIFICATION
21
Judge: Hon. Gonzalo P. Curiel
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Ctrm: 2D (2nd Floor)
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This Document Relates to All Actions
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Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For Class
Certification; Case No. 3:21-md-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 360 Filed 11/07/24 PageID.12109 Page
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1 Pursuant to Local Rule 79.2 and Section 12.5 of the Stipulated Protective Order
2 (ECF 82) in this case and the Court’s Civil Pretrial & Trial Procedures, Plaintiffs hereby
3 oppose Defendant Bank of America, N.A.’s (“Defendant” or “BANA”) Motion to Seal
4 Documents Filed in Opposition to Plaintiffs’ Motion for Class Certification.
5 I. LEGAL STANDARD
6 There is a strong presumption in favor of public access to court records. Nixon v.
7 Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978) (“[T]he courts of this country recognize
8 a general right to inspect and copy public records and documents, including judicial records
9 and documents.” (cleaned up)); see also Kamakana v. City & Cnty. of Honolulu, 447 F.3d
10 1172, 1178 (9th Cir. 2006) (“Unless a particular court record is one ‘traditionally kept
11 secret,’ a ‘strong presumption in favor of access’ is the starting point.”). This presumption
12 in favor of access is at its strongest when the documents sought to be sealed are “more than
13 tangentially related to the merits of a case,” such as a class certification motion. Nia v. Bank
14 of Am., N.A., No. 21-cv-1799-BAS-BGS, 2024 WL 171659, at *2 (S.D. Cal. Jan. 12,
15 2024).1
16 The party seeking to seal a court record has the burden of “articulat[ing] compelling
17 reasons [to seal a document] supported by specific factual findings . . . that outweigh the
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19 1 Defendant relies primarily on unreported cases that pre-date Center for Auto Safety v.
20 Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016) for the proposition that the
“compelling reasons” test only applies if “denial of a motion for class certification would
21 constitute the death knell of the case.” ECF 347 at 1 (quoting Makaeff v. Trump Univ.,
22 LLC, No. 10-cv-0940-GPC (WVG), ECF 416 (S.D. Cal. June 29, 2015)). That is no
longer good law following Center for Auto Safety, which rejected such a narrow reading
23 of “dispositive” and held that “public access will turn on whether the motion is more than
24 tangentially related to the merits of a case.” 809 F.3d at 1101. Since then, “[c]ourts within
this circuit apply the compelling reasons standard to motions to seal documents relating
25 to class certification.” Fodera v. Equinox Holdings, Inc., 341 F.R.D. 616, 634 (N.D. Cal.
26 2022); see also, e.g., Cohen v. Trump, No. 10-cv-0940-GPC-WVG, 2016 WL 3036302,
at *3 (S.D. Cal. May 27, 2016) (collecting cases holding that the “compelling reasons”
27 test applies to motions for class certification because such motions are “more than
28 tangentially related to the merits”).
Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For 1
Class Certification; Case No. 3:21-md-02992-GPC-MSB
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1 general history of access and the public policies favoring disclosure, such as the public
2 interest in understanding the judicial process.” Kamakana, 447 F.3d at 1178-79 (cleaned
3 up).
4 The moving party must show compelling reasons for sealing “even if the dispositive
5 motion, or its attachments, were previously filed under seal or protective order.”
6 Kamakana, 447 F.3d at 1179. Defendant’s argument that the Court’s prior discovery orders
7 sealing documents “just like those at issue here . . . are sufficient grounds alone to grant
8 sealing here” is not supported by even the cases it cites. See ECF 347 at 4:7-27. In both
9 Lundstrom and Workplace Technologies, the court granted motions to seal documents that
10 had been previously sealed when filed with procedurally identical motions subject to the
11 same compelling reasons standard. See Lundstrom v. Young, No. 18-cv-2856-GPC, 2022
12 WL 15524624, at *17 (S.D. Cal. Oct. 27, 2022) (granting an uncontested request to seal
13 documents filed with a motion to dismiss because it had previously found there were
14 compelling reasons to seal those documents when they were filed with an earlier motion to
15 dismiss); see also Workplace Techs. Rsch., Inc. v. Project Mgmt. Inst., No. 18-cv-1927-
16 JM-MSB, 2021 WL 6091272, at *2 (S.D. Cal. Oct. 20, 2021) (sealing deposition testimony
17 filed with a motion for summary judgment that had been previously sealed when filed with
18 an earlier motion for summary judgment).2 Here, the Bank attempts to rely on sealing
19 orders that were uncontested, unsupported by any evidence, and decided under the less
20 stringent “good cause” standard applicable to discovery disputes. See ECF 266 (granting
21 uncontested motion to seal documents filed with ECF 210-212, a motion to compel
22 discovery); ECF 293 (granting uncontested motion to seal documents filed with ECF 276-
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24 2
Moreover, both cases also involve subsequent requests to seal the exact same documents
25 subject to a previous sealing order. Lundstrom, 2022 WL 15524624, at *17 (“[T]hose
26 [previously sealed] documents are identical to the Exhibits in the present motion.”);
Workplace Techs., 2021 WL 6091272, at *2 (“[T]he court already granted the Parties’
27 Motions to Seal the limited portions of [deponents’] testimony at issue here.”). They
28 provide no support for the Bank’s contention that prior sealing of “similar documents”
has any bearing on its request to seal different documents now.
Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For 2
Class Certification; Case No. 3:21-md-02992-GPC-MSB
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1 278, a motion to reverse magistrate judge’s discovery order). The court’s prior sealing
2 orders under the “good cause” standard applicable to discovery disputes has no bearing on
3 whether the Bank has met its burden to establish compelling reasons supporting its
4 sweeping request to seal large portions of its brief, expert declarations, and evidence in
5 opposition to class certification. As explained below, the Bank has not met its burden, and
6 therefore its motion, with limited exceptions, should be denied.
7 II. BANA FAILS TO ESTABLISH COMPELLING REASONS TO SEAL
8 THE REQUESTED DOCUMENTS
9 BANA’s sealing request is grossly overbroad. BANA seeks to seal in their entirety
10 70 out of 122 defense exhibits: DX 12, 18-33, 35-36, 38, 40-43, 45-47, 51, 58-62, 64, 66-
11 73, 77-78, 80-82, 84-86, 90, 97-105, 112-118, and 120-122. Nowhere in its motion does
12 BANA address its obligation to narrowly tailor its sealing request through proposed
13 redactions. BANA further requests that the Court seal large portions of its opposition brief
14 and expert declarations simply because they graze some of the same subject matter as those
15 exhibits, even though much of that content is not sensitive or is already in the public record.
16 See, e.g., Opp’n Br. 1:14-16, 6:10-11, 8:11-14, 15:21-16:2, 29:14-20, 32:7-9; see Shane
17 Grp., Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir. 2016)
18 (heightened justification needed to seal class certification briefs). Accordingly, the Court
19 should deny the motion and direct BANA to file an unredacted version of its brief and to
20 diligently redact its exhibits to address only the specific information it seeks to have sealed.
21 Documents that risk future fraud: BANA seeks to seal its fraud and claims review
22 policies, practices and strategies, and any analyses of them based on an unsupported
23 assertion that those documents “could be misused to perpetrate future fraud.” ECF 347 at
24 7. However, BANA fails to show precisely which portions of DX 23, 24, 25, 26, 27, 29,
25 41, 43, 85, 97, 98, 100, 102, 103, 112, 113, 114, 115, 121, and 122 should be redacted to
26 address this concern. And its claim that documents that refer to discontinued fraud
27 mitigation strategies should be sealed in their entirety is similarly overbroad. Speculation
28 about potential future fraud, untethered from any concrete examples, is insufficient to
Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For 3
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1 overcome the public’s right to access court documents. Cohen, 2016 WL 3036302, at *5;
2 see also Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995) (sealing may not be
3 based on “hypothesis or conjecture”).
4 Accordingly, Plaintiffs respectfully request that the Court direct BANA to
5 specifically identify the portions of documents that reference sensitive fraud and claims
6 review policies and redact only those specific references. Kamakana, 447 F.3d at 1183.
7 Documents that risk competitive harm: BANA’s vague and conclusory assertions
8 that the lodged documents “contain sensitive business information that could be used to
9 BANA’s competitive or commercial disadvantage,” see ECF 347 at 8-12, are insufficient
10 to meet the Bank’s burden. See, e.g., Cohen, 2016 WL 3036302, at *5 (holding a “blanket
11 assertion” of competitive harm insufficient to justify sealing); Whitecryption Corp. v.
12 Arxan Techs., Inc., No. 15-cv-00754-WHO, 2016 WL 7852471, at *2 (N.D. Cal. Mar. 9,
13 2016) (denying sealing motion where supporting declaration offered only “generalized,
14 unsupported assertions of unfair advantage to competitors without explaining ‘how a
15 competitor would use the information to obtain an unfair advantage’” (citation omitted)).
16 For example, the Bank seeks to seal correspondence with the Employment
17 Development Department regarding its public contract. See DX 21, 28. These documents
18 are subject to public records requests—the antithesis of proprietary business information.
19 See Cal. Gov’t Code §§ 6250 et seq. The Bank further claims that DX 12 is “proprietary,
20 confidential business information of EDD and/or BANA,” ECF 347 at 11:1-4, but such
21 “conclusory offerings do not rise to the level of ‘compelling reasons’ sufficiently specific
22 to bar the public access to the documents.” Kamakana, 447 F.3d at 1182. The Bank must
23 establish that such information would be harmful to the Bank if made public, and it makes
24 no effort to do so with any of the documents it seeks to seal.3 BANA’s wholesale sealing
25 of these documents based on a conclusory assertion that they constitute “sensitive business
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28 As an example of how overbroad the Bank’s sealing requests are, the Bank seeks to seal
even the EDD Cardholder Agreement [DX 22].
Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For 4
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1 information” is insufficient to show that there are compelling reasons to seal or that its
2 designations are narrowly tailored.
3 Plaintiffs respectfully request that the Court direct BANA to specifically identify the
4 portions of documents that would expose it to purported competitive harm that reference
5 policies and procedures it currently employs, and specifically identify portions of those
6 documents it seeks to seal.
7 Class members’ personal information: Plaintiffs do not oppose sealing documents
8 and portions of documents that disclose cardholder personal identifying information,
9 including DX 1, 9, 30-33, 35, 36, 38, 40, 45, 46, 47, 51, 58-62, 64, 66-73, 77, 78, 80, 81,
10 82, and 84, which contain personal transaction details, financial information, and the
11 Bank’s fraud allegations attributable to specific individuals.
12 But not all of the documents the Bank describes as disclosing “personal information”
13 actually do so. DX 85 and DX 86 contain only anonymized data about the Bank’s
14 Remediation Plan payments, without any personally identifiable information traceable to
15 any particular individual. There is no cause for sealing anonymized class data. See Pac.
16 Fertility Ctr., 441 F. Supp. 3d at 907 (sealing the identities of absent class members but
17 not other anonymized information derived from medical records, including the total
18 number of class and sub-class members).
19 Regulator materials: To the extent that the Bank or the regulators can substantiate
20 compelling reasons for sealing, Plaintiffs take no position as to the sealing of the
21 Remediation Plan and Addenda pursuant to the Consent Orders of the Office of the
22 Comptroller of the Currency (“OCC”) and Consumer Financial Protection Bureaus
23 (“CFPB”).4 However, those documents were not filed with the Bank’s Opposition to Class
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26 As previously stated, see ECF 341 at 5:15-6:2, Plaintiffs do oppose sealing the
definition of Excluded Cardholders in Plaintiffs’ Motion for Class Certification because
27 the public interest in understanding the scope of the class—including the interests of
28 absent class members—outweighs any interest in the secrecy of this brief excerpt. See In
re Cendant Corp., 260 F.3d 183, 193 (3d Cir. 2001) (right of public access particularly
Opposition to Defendant’s Motion to Seal Documents Filed in Opposition to Plaintiffs’ Motion For 5
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1 Certification and are not the subject of this sealing motion. The Bank seeks to over-extend
2 the regulators’ privilege to seal not just records created, obtained, or compiled by the
3 regulators but interrogatory responses, expert reports, and accompanying exhibits, which
4 contain only anonymized data about the amount of compensation individuals were paid
5 after the Bank implemented the Remediation Plan, the aggregate amounts of automatically
6 denied claims and rescinded credits pursuant to the Claim Fraud Filter, and the lengths of
7 time (anonymized) class member accounts were frozen [DX 1, 2, 6, 7, 9, 23, 24, 41, 43,
8 85, 86, 98, 105, 112, and 122].
9 III. CONCLUSION
10 For the reasons stated above, Plaintiffs respectfully request that the Court deny
11 Defendant’s Motion to Seal, in part, and direct Defendant to specifically identify the
12 portions of documents to be sealed.
13 Respectfully submitted,
14 Dated: November 7, 2024 COTCHETT, PITRE & McCARTHY, LLP
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By: /s/ Brian Danitz
16 JOSEPH W. COTCHETT
17 BRIAN DANITZ
KARIN B. SWOPE
18 BLAIR V. KITTLE
19 VASTI S. MONTIEL
20 Co-Lead Counsel for Plaintiffs and the
Proposed Class
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26 compelling in class actions “because many members of the ‘public’ are also [absent]
plaintiffs in the class action”); Maldonado v. Apple, Inc., No. 3:16-cv-04067-WHO,
27 2021 WL 134579, at *5 (N.D. Cal. Jan. 14, 2021) (denying sealing where doing so would
28 make it “impossible to understand the fundamentals of [the Court’s] Order—and by
extension, the scope of the class”).
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1 Dated: November 7, 2024 ALTSHULER BERZON LLP
2 By: /s/ Connie K. Chan
3 MICHAEL RUBIN
STACEY M. LEYTON
4 CONNIE K. CHAN
5 KATHERINE G. BASS
COLIN C. JONES
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Co-Lead Counsel for Plaintiffs and the
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Proposed Class
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1 SIGNATURE ATTESTATION
2 Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and
3 Procedures Manual, I, Brian Danitz, attest that the other signatories listed, and on whose
4 behalf this filing is submitted, concur in the filing content and have authorized this filing.
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6 Dated: November 7, 2024 /s/ Brian Danitz
7 Brian Danitz
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