Court filing
NOTICE of Joinder by Bank of America, N.A. re 376 MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 383)
No. 3:21-md-02992-GPC-MSB · Doc. 383 · Docket on CourtListener
Summary
Bank of America, N.A.'s joinder in the plaintiffs' motion to file documents under seal (ECF 376), filed November 27, 2024 as Document 383 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. Under Local Civil Rule 79.2(c), the bank asks the court to seal Exhibits 164-168 and 177 in their entirety and portions of Exhibits 158-162, 174, 178, 179 and 180 filed with the plaintiffs' class certification reply. It argues the exhibits reflect confidential fraud analysis on ATM skimming and claims data, its revenue share with EDD, its Remediation Plans with the OCC and CFPB, or cardholders' personal information. The joinder relies on the court's earlier sealing orders (ECF 365, 381) and is signed by James W. McGarry of Goodwin Procter LLP.
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Case 3:21-md-02992-GPC-MSB Document 383 Filed 11/27/24 PageID.19989 Page
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1 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
2 GOODWIN PROCTER LLP
100 Northern Avenue
3 Boston, MA 02210
Tel.: +1 617 570 1000
4 Fax: +1 617 523 1231
5 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
6 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
7 GOODWIN PROCTER LLP
1900 N Street, NW
8 Washington, DC 20036
Tel.: +1 202 346 4000
9 Fax: +1 202 346 4444
10 Attorneys for Defendant
BANK OF AMERICA, N.A.
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12 [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
13 UNITED STATES DISTRICT COURT
14 SOUTHERN DISTRICT OF CALIFORNIA
15 SAN DIEGO DIVISION
16 IN RE: BANK OF AMERICA Case No. 21-MD-02992-GPC-MSB
CALIFORNIA UNEMPLOYMENT
17 BENEFITS LITIGATION DEFENDANT’S JOINDER IN
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PLAINTIFFS’ MOTION TO FILE
DOCUMENTS UNDER SEAL
19 (ECF 376)
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Ctrm: 2D – 2nd Floor
21 Judge: Hon. Gonzalo P. Curiel
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 383 Filed 11/27/24 PageID.19990 Page
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1 PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
2 Defendant Bank of America, N.A. (“Defendant” or “BANA”) submits this Joinder in
3 Plaintiffs’ Motion to File Documents Under Seal (ECF 376) (“Plaintiffs’ Motion to
4 Seal”) submitted in connection with Plaintiffs’ Reply in Support of Motion for Class
5 Certification (ECF 378) (“Plaintiffs’ Reply”).1 In particular, BANA seeks to seal
6 Plaintiffs’ Exhibits 164-168 and 177 in their entirety and portions of Exhibits 158-
7 162, 174, 178, 179 and 180 because compelling reasons support sealing of the
8 identified documents or portions thereof, as well as any references to the contents of
9 those exhibits in Plaintiffs’ Index of Exhibits to the Supplemental Declaration of
10 Connie K. Chan in Support of Plaintiffs’ Motion for Class Certification (ECF 378-1)
11 (“Plaintiffs’ Index of Exhibits”) and Plaintiffs’ Reply.2
12 As previously stated in BANA’s motions to seal submitted in connection with
13 class certification briefing (ECF 328, 337, 344, 347), the public’s right to inspect and
14 copy judicial records is not absolute, and a party faced with the disclosure of
15 confidential or proprietary information may seek to file the documents under seal to
16 avoid disclosure of business information that might result in competitive harm or be
17 used for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
18 598 (1978)) (denying disclosure); Local Civ. R. 79.2(c). There are compelling
19 reasons to seal the documents and testimony at issue here—each of which contain
20 information that qualifies as “Protected Material” pursuant to the Parties’ Stipulated
21 Protective Order (“Protective Order”), entered by the Court on September 24, 2021
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23 This Joinder is based on and incorporates by reference Plaintiffs’ Motion to Seal
(ECF 376) and the grounds stated therein for the sealing of Exhibits 158-162, 164-
24 168, 174, 177-180 or portions thereof, the documents filed in support of Plaintiffs’
Reply (ECF 378), Defendants prior sealing motions (ECF 328, 337, 344, 347) and
25 accompanying declarations submitted in support (ECF 344-1, 344-2, 344-3, 347-1,
347-2), all pleadings and papers on file in this action, oral argument if requested by
26 the Court, and any such other matters that the Court deems appropriate.
2
BANA also supports the sealing of Exhibits 181-183, which are documents that
27 Plaintiffs designated confidential under the Protective Order and which contain
confidential cardholder information and personal identifying information (“PII”).
28 See ECF 376 at 2-3.
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 383 Filed 11/27/24 PageID.19991 Page
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1 (ECF No. 82)—because each pertains to topics that are likely to cause particularized
2 competitive harm to BANA and which could potentially enable future fraud, which
3 poses a danger to BANA’s business and the public. See, e.g., East West Bank v.
4 Shanker, 2021 WL 3112452, at *18-19 (N.D. Cal. July 22, 2021) (finding compelling
5 reasons to seal where public disclosure of EWB’s confidential onboarding processes,
6 verification of customer identities and fraud prevention measures would “harm [the
7 bank’s] competitive standing”); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4
8 (C.D. Cal. Apr. 25, 2019) (finding compelling reasons to seal bank’s internal
9 procedures for investigating fraud because there was a “significant danger that
10 someone could improperly use this information to commit fraud and avoid
11 detection”).
12 Moreover, each of the Exhibits that Plaintiffs and BANA seek to seal reflect
13 information pertaining to BANA’s confidential fraud analyses, BANA’s revenue
14 share with EDD, BANA’s Remediation Plans or BANA’s implementation of the
15 Plans, or EDD cardholders’ claim information, which are the same categories of
16 information that this Court has already found compelling reasons to seal. See ECF
17 365 (Amended Sealing Order); ECF 381 (Sealing Order). In particular:
18 Exhibits 164-166 reflect confidential BANA fraud analyses pertaining
19 to ATM skimming that could be misused by criminals to perpetuate
20 future fraud by circumventing BANA’s security and fraud prevention
21 procedures or that could cause competitive harm to BANA. See
22 Amended Sealing Order (ECF 365) at 5-6, 12; Martin Decl. (ECF 344-
23 1) ¶¶ 5-8; see also E.W. Bank, 2021 WL 3112452, at *18-19 (granting
24 motion to seal where public disclosure of confidential fraud prevention
25 measures would “harm [bank’s] competitive standing”);
26 Exhibit 166 reflects confidential BANA fraud analyses pertaining to
27 ATM claims data that similarly could be misused by fraudsters to
28 perpetrate future fraud or could be used by another financial institution
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 to BANA’s competitive disadvantage. See Amended Sealing Order
2 (ECF 365) at 5-6, 12; Robart Decl. (ECF 342-2) ¶¶ 3-5; Martin Decl.
3 (ECF 347-1) ¶¶ 10-12; see also Cowan v. GE Cap. Retail Bank, 2015
4 WL 1324848, at *2-3 (N.D. Cal. Mar. 24, 2015) (compelling reasons to
5 seal bank’s internal procedures for investigating fraud and addressing
6 cardholder fraud notifications);
7 Exhibit 179 reflects confidential BANA testimony related to negotiating
8 changes to BANA’s revenue share with EDD, which reflects
9 “confidential negotiations and agreements with EDD” that this Court
10 has already found compelling reasons to seal. Amended Sealing Order
11 (ECF 365) at 13; see also ECF 347 at 10; see also Brady v. Grendene
12 USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel)
13 (sealing confidential business information that might harm the litigants’
14 competitive standing including profit and loss data and contractual
15 agreements);
16 Exhibit 180 reflects confidential BANA testimony pertaining to
17 BANA’s Remediation Plans with the Office of the Comptroller of the
18 Currency (“OCC”) and the Consumer Financial Protection Bureau
19 (“CFPB”)—which were designated Highly Confidential – Attorneys’
20 Eyes Only at those regulators’ requests—or BANA’s implementation of
21 the Remediation Plans, which this Court has found compelling reasons
22 to seal because they “contain highly sensitive, and confidential
23 information that would subject any disclosure to potential fraud in
24 seeking payments under the Plans.” Amended Sealing Order (ECF 365)
25 at 14-16; see also Lennon Decl. (ECF 344-3) ¶¶ 3-6; see also Erhart v.
26 BofI Fed. Bank, 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019)
27 (sealing information that the OCC asserted bank examination privilege
28 over but permitted to be produced subject to confidentiality protections);
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 and
2 Exhibits 167, 174, 177 and 178 reflect confidential cardholder account
3 or personal information, including personal identifying information, the
4 disclosure of which could expose those cardholders to harm or identity
5 theft. See Amended Sealing Order (ECF 365) at 16; Sealing Order (ECF
6 381) at 1; see also Robart Decl. (ECF 347-2) ¶¶ 3-8; see also Stiner v.
7 Brookdale Senior Living, Inc., 2022 WL 1180216, at *2 (N.D. Cal. Mar.
8 30, 2022) (sealing documents containing employees’ personally
9 identifying information like names, email addresses, and phone
10 numbers). Those exhibits also reflect the types of claims files or
11 information that BANA considers in connection with investigating and
12 processing unauthorized transaction and error claims. See Robart Decl.
13 (ECF 347-2) ¶¶ 3-8. Further compelling reasons exist to seal that
14 information because the disclosure of that information could provide
15 potential fraudsters with insight into BANA’s confidential claims
16 processes or procedures, thereby enabling fraudsters to circumvent them
17 and perpetrate future fraud, and disclosure could also enable other
18 financial institutions to use that information to BANA’s competitive
19 disadvantage. See id.
20 Additionally, there are compelling reasons to seal portions of Plaintiffs’
21 rebuttal expert reports (Exs. 158-162), Plaintiffs’ Index of Exhibits and Plaintiffs’
22 Reply that quote from or summarize the exhibits discussed above because, as this
23 Court has held, “[q]uotes or summary descriptions from sealed exhibits should be
24 filed under seal.” Amended Sealing Order (ECF 365) at 18; see also Darisse v. Nest
25 Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal. June 2, 2016) (sealing class
26 certification motion and declarations that quote or reference confidential exhibits).
27 For the foregoing reasons and for the reasons set forth in the Court’s sealing
28 orders in connection with class certification briefing (ECF 365, 381), Plaintiffs’
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 383 Filed 11/27/24 PageID.19994 Page
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1 Motion to Seal (ECF 376), and BANA’s prior motions to seal (ECF 328, 337, 344,
2 347) and accompanying declarations submitted in support (ECF 344-1, 344-2, 344-
3 3, 347-1, 347-2), BANA respectfully requests that the Court grant Plaintiffs’ Motion
4 to Seal Exhibits 164-168 and 177 in their entirety, portions of Exhibits 158-162, 174,
5 178, 179 and 180, and any references to those exhibits in Plaintiffs’ Index of Exhibits
6 (ECF 378-1) or Plaintiffs’ Reply (ECF 378) because compelling reasons support
7 sealing of the identified documents or portions thereof.
8 Dated: November 27, 2024 Respectfully submitted,
9 By: s/ James W. McGarry__________________
10 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
11 GOODWIN PROCTER LLP
100 Northern Avenue
12 Boston, MA 02210
Tel.: +1 617 570 1000
13 Fax: +1 617 523 1231
14 THOMAS M. HEFFERON (pro hac vice)
THefferon@goodwinlaw.com
15 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
16 MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
17 GOODWIN PROCTER LLP
1900 N St. NW
18 Washington, DC 20036
Tel: +1 202 346 4000
19 Fax: +1 202 346 4444
20 LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
21 GOODWIN PROCTER LLP
601 S Figueroa St., Suite 4100
22 Los Angeles, CA 90017
Tel.: +1 213 426 2500
23 Fax: +1 617 346 4444
24 YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
25 JONES DAY
100 High Street
26 Boston, MA 02110
Tel.: +1 617 960 3939
27 Fax: +1 617 449 6999
28 JANICE P. BROWN (SBN 114433)
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN
2 278405)
mnazareth@myersnave.com
3 MEYERS NAVE
600 B Street, Suite 1650
4 San Diego, CA 92101
5 Attorneys for Defendant
BANK OF AMERICA, N.A.
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 CERTIFICATE OF SERVICE
2 I hereby certify that I electronically filed the foregoing with the clerk of the
3 court for the United States District Court for the Southern District of California by
4 using the CM/ECF system on November 27, 2024. I further certify that all
5 participants in the case are registered CM/ECF users and that service will be
6 accomplished by the CM/ECF system. I certify under penalty of perjury that the
7 foregoing is true and correct.
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10 Executed: November 27, 2024 s/ James W. McGarry
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DEFENDANT’S JOINDER IN PLAINTIFFS’ MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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