Notice of Motion and Motion for Class Certification — In re BofA Unemployment Litigation (Dkt. 386-1)

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U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 386-1 · 2024-12-02 · Docket on CourtListener

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Plaintiffs’ Notice of Motion and Motion for Class Certification; 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 
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 
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 
(Additional Counsel Listed Below) 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
This Document Relates to All Actions 
Case No. 3:21-md-02992-GPC-MSB 
PLAINTIFFS’ NOTICE OF 
MOTION AND MOTION FOR 
CLASS CERTIFICATION 
Judge: Hon. Gonzalo P. Curiel 
Ctrm:  2D (2nd Floor) 
Date: 
Time: 
ORAL ARGUMENT REQUESTED 
REDACTED PUBLIC VERSION
Case 3:21-md-02992-GPC-MSB     Document 386-1     Filed 12/02/24     PageID.20384 
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Plaintiffs’ Notice of Motion and Motion for Class Certification; 
Case No. 3:21-md-02992-GPC-MSB 
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NOTICE OF MOTION AND MOTION 
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 
PLEASE TAKE NOTICE that, on a date and time to be determined, in Courtroom 
2D, 2nd Floor, of the United States Courthouse located at 333 West Broadway, San Diego, 
CA 92101, plaintiffs Kuang Ting Chong, Candace Koole, Lindsey McClure, Azuri Moon, 
Stephanie Moore, Roland Oosthuizen, Vanessa Rivera, J. Michael Willrich, and Alex Yuan 
(“Plaintiffs”) will and hereby do move the Court for an Order (i) certifying this action as a 
class action on behalf of Plaintiffs and the five classes identified below; (ii) appointing 
Plaintiffs as class representatives for each of those classes; and (iii) appointing Cotchett 
Pitre & McCarthy LLP and Altshuler Berzon LLP to serve as co-lead class counsel.  
Classes 
Plaintiffs seek to certify the following five classes: 
Claim Denial Class: All Bank of America EDD cardholders who notified the Bank 
that an unauthorized transaction had occurred on their Bank of America EDD debit card 
account (“Claim”) at an automated teller machine (“ATM”), and whose Claim the Bank 
denied or closed at any time from September 28, 2020 through June 8, 2021, based solely 
on Indicator 1 of the Bank’s Claim Fraud Filter (“CFF”). 
Credit Rescission Class: All Bank of America EDD cardholders who received 
permanent credit from the Bank in connection with their Claim before September 28, 2020, 
which credit the Bank rescinded at any time from September 28, 2020 through June 8, 
2021, based solely on Indicator 1 of the Bank’s CFF. 
Account Freeze Class: All Bank of America EDD cardholders whose EDD debit 
card account (“Account”) the Bank froze at any time from September 28, 2020 through 
March 17, 2021, based solely on Indicator 1 of the Bank’s CFF, and whose Account the 
Bank (i) subsequently unfroze, or (ii) subsequently converted from frozen to blocked status 
on or after March 18, 2021 and then unblocked. 
Customer Service Class: All members of the Claim Denial class and/or the Credit 
Rescission class who telephoned the Bank’s customer service telephone number for its 
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Plaintiffs’ Notice of Motion and Motion for Class Certification; 
Case No. 3:21-md-02992-GPC-MSB 
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EDD cardholders at any time from September 13, 2020 through November 21, 2020, and 
whose telephone call was routed to the Bank’s Claims call center. 
EMV Chip Class: All members of the Claim Denial class and/or Credit Rescission 
cass whose EDD debit card did not include an EMV chip prior to June 9, 2021. 
Excluded from each class is any person whom the Bank has determined, pursuant to 
its Remediation Plan with the United States Consumer Financial Protection Bureau (CFPB) 
and Office of the Comptroller of the Currency (OCC), “(i) has been disqualified by the 
[S]tate [of California] from Program eligibility;1 (ii) has previously engaged in fraudulent
Program conduct, such as submission of fraudulent claims or other abuses of the claims 
process; or (iii) has had their card frozen due to legal order processes, as a result of 
Internal/Vendor fraud investigations, or by Global Financial Crimes Compliance.” Ex. 74 
at 3.2 Also excluded from each class is any person whose Claim or Account the Bank 
closed, in whole or in part, because the State of California requested the Bank to close that 
person’s Claim or Account. 
Plaintiffs seek the appointment of Plaintiffs Koole, McClure, Moon, Oosthuizen, 
Rivera, Willrich, and Yuan as class representatives for the Claim Denial class; the 
appointment of Plaintiffs Chong and Moore as class representatives for the Credit 
Rescission class; the appointment of Plaintiffs Chong, Koole, McClure, Moon, Moore, 
Rivera, and Yuan as class representatives for the Account Freeze class; the appointment of 
Plaintiffs Chong, Moon, Moore, Oosthuizen, Willrich, and Yuan as class representatives 
for the Customer Service class; and the appointment of Plaintiffs Chong, Koole, McClure, 
Moon, Moore, Oosthuizen, Rivera, Willrich, and Yuan as class representatives for the 
EMV Chip class. 
1 The Remediation Plan defines “Program” as “the Bank’s Unemployment Benefits Prepaid 
Card Program.” Ex. 74 at _.  
2 “Ex.” in this motion and the accompanying brief refers to exhibits attached to the 
Declaration of Connie K. Chan (“Chan Decl.”), which are also listed in Plaintiffs’ 
concurrently filed Appendix of Exhibits. 
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Plaintiffs’ Notice of Motion and Motion for Class Certification; 
Case No. 3:21-md-02992-GPC-MSB 
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Claims for Relief 
Plaintiffs seek certification of the designated classes to pursue their claims for relief 
pursuant to: (1) the Electronic Fund Transfers Act (“EFTA”), 15 U.S.C. §§1693(a)-(r), and 
its implementing Regulation E (“Reg E”), 12 C.F.R. pt. 1005 (Claim Denial and Credit 
Rescission classes); (2) the due process clauses of the United States Constitution, amend. 
XIV (42 U.S.C. §1983), and California Constitution, art. I §7(a) (Credit Rescission and 
Account Freeze classes); (3) breach of fiduciary duty (all classes); (4) breach of the implied 
covenant of good faith and fair dealing under the Bank’s account agreement with EDD 
cardholders (Claim Denial, Credit Rescission, Account Freeze, and Customer Service 
classes); (5) California Consumer Privacy Act (“CCPA”), Cal. Civ. Code §§1798.100-.199 
(EMV Chip class); (6) negligence and negligence per se (all classes); and (7) the Unfair 
Competition Law (“UCL”), Cal. Bus. & Prof. Code §§17200-17210. (Claim Denial, Credit 
Rescission, and Account Freeze classes). 
Basis for the Motion 
This Motion is made under Rules 23(a) and 23(b)(3) of the Federal Rules of Civil 
Procedure and in the alternative Rule 23(c)(4), on the grounds that: 
(a) Numerosity: Joinder of all class members is impracticable because each class
consists of many thousands of similarly situated Bank of America EDD cardholders; 
(b) Commonality: The Bank’s common conduct presents core questions of law and
fact common to all members of each class arising out of the Bank’s conduct during the 
relevant time period as alleged herein, including: (i) summarily denying EDD cardholders’ 
claims of unauthorized ATM withdrawals based solely on Indicator 1 of the Bank’s CFF, 
without conducting a reasonable investigation; (ii) summarily rescinding permanent credits 
previously paid on EDD cardholders’ claims of unauthorized ATM withdrawals, based 
solely on a retroactive application of Indicator 1 of the Bank’s CFF; (iii) summarily 
freezing the EDD debit card accounts of EDD cardholders who submitted claims of 
unauthorized ATM withdrawals, based solely on Indicator 1 of the Bank’s CFF, without 
providing a reasonable process for affected cardholders to seek to have their accounts 
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Plaintiffs’ Notice of Motion and Motion for Class Certification; 
Case No. 3:21-md-02992-GPC-MSB 
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unfrozen; (iv) grossly understaffing the Bank’s Claims call center, which handled 
telephone calls from EDD cardholders pertaining to their unauthorized-transaction claims; 
and (v) failing to provide reasonable security to EDD cardholders by issuing them debit 
cards that relied on outdated magnetic-stripe technology and lacked an embedded EMV 
chip. 
(c) Typicality: Plaintiffs’ claims are typical of the claims of each class of which they
are a member; 
(d) Adequacy: Plaintiffs and their attorneys have fairly and adequately protected the
interests of each class and will continue to do so; 
(e) Predominance: The questions of law and fact that are common to each class
predominate over any individualized issues that might exist; and 
(f) Superiority: A class action is superior to any other method of adjudicating
Plaintiffs’ class claims. 
Plaintiffs’ Motion is based upon this notice of motion, the accompanying 
memorandum of points and authorities, the supporting declarations of each Plaintiff 
seeking to be a class representative, the supporting declaration of Connie K. Chan and all 
exhibits thereto (including the expert reports of J. Daniel Kreis, Jane Cloninger, Jay 
Minnucci, and Greg Regan), the Joint Declaration of Brian Danitz and Michael Rubin 
(“Joint Decl.”), any reply memorandum or other memorandum Plaintiffs may file, all 
filings in this action, and such other filings and arguments as may be presented to the Court. 
/ / / 
/ / / 
/ / / 
/ / / 
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Plaintiffs’ Notice of Motion and Motion for Class Certification;
Case No. 3:21-md-02992-GPC-MSB 
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Dated:  August 29, 2024 
Respectfully submitted, 
COTCHETT, PITRE & McCARTHY, LLP 
By:  /s/ Brian Danitz
JOSEPH W. COTCHETT 
BRIAN DANITZ  
KARIN B. SWOPE  
ANDREW F. KIRTLEY 
VASTI S. MONTIEL 
Dated:  August 29, 2024 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class  
ALTSHULER BERZON LLP 
By:  /s/ Michael Rubin
MICHAEL RUBIN  
STACEY M. LEYTON 
CONNIE K. CHAN 
KATHERINE G. BASS 
COLIN C. JONES 
Co-Lead Counsel for Plaintiffs and the 
Proposed Class  
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Plaintiffs’ Notice of Motion and Motion for Class Certification; 
Case No. 3:21-md-02992-GPC-MSB 
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SIGNATURE ATTESTATION 
Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and 
Procedures Manual, I, Brian Danitz, attest that the other signatories listed, and on whose 
behalf this filing is submitted, concur in the filing content and have authorized this filing. 
Dated: August 29, 2024 
/s/ Brian Danitz 
    Brian Danitz 
Case 3:21-md-02992-GPC-MSB     Document 386-1     Filed 12/02/24     PageID.20390 
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