Response in Opposition re 324 Motion to Certify Class filed by Bank of America — In re BofA Unemployment Litigation (Dkt. 349)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 349 · 2025-01-17 · Docket on CourtListener

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JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street, NW 
Washington, DC 20036 
Tel.: +1 202 346 4000 
Fax: +1 202 346 4444 
Attorneys for Defendant  
BANK OF AMERICA, N.A. 
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] 
 
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA  
SAN DIEGO DIVISION 
IN RE: BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
 
 Case No. 1-MD-02992-GPC-MSB 
DEFENDANT’S MEMORANDUM 
OF POINTS AND AUTHORITIES IN 
OPPOSITION TO PLAINTIFFS’ 
MOTION FOR CLASS CERTIFICA-
TION 
Date: January 17, 2025 
Time: 1:30 p.m. 
Ctrm: 2D – 2nd Floor  
Judge: Hon. Gonzalo P. Curiel  
 
ORAL ARGUMENT REQUESTED 
 
FILED PROVISIONALLY UNDER SEAL 
PURSUANT TO STIPULATED PROTECTIVE 
ORDER  
 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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CASE NO. 21-MD-02992-GPC-MSB 
 
 
 
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TABLE OF CONTENTS 
 
Page 
BACKGROUND ....................................................................................................... 6 
A. 
The Pandemic Benefit Scams ............................................................... 6 
B. 
The “Magnetic Stripe” Red Herring ................................................... 10 
C. 
The Complaints And Centralization ................................................... 12 
D. 
The Regulatory Consent Orders And Remediation Plan .................... 12 
E. 
The Dismissal Ruling and Amended Complaints ............................... 14 
F. 
The “Best” Class Representatives and the Ex–Class 
Representatives ................................................................................... 15 
STANDARD OF LAW ........................................................................................... 17 
ARGUMENT ........................................................................................................... 18 
I. 
Plaintiffs’ “common questions” cannot drive the resolution of this 
litigation. ........................................................................................................ 18 
A. 
Essential elements of Plaintiffs’ EFTA claim require individual 
evidence. .............................................................................................. 18 
1. 
Essential questions about fraudulent benefits claims are 
not common. ............................................................................. 19 
2. 
Essential questions about transaction authorizations are 
not common. ............................................................................. 19 
3. 
Essential questions about adequate notice are not 
common. ................................................................................... 24 
4. 
“The evidence available” on each account is not common. ..... 25 
B. 
Essential elements of Plaintiffs’ other claims also require 
individual proof. .................................................................................. 27 
1. Due process ..................................................................................... 27 
2. California Consumer Privacy Act ................................................... 28 
3. Common-law claims ....................................................................... 29 
4. Unfair Competition Law ................................................................. 33 
5. Punitive damages ............................................................................ 33 
II. 
Individual issues will predominate. ............................................................... 34 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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A. 
The issues turning on individual cardholders are predominating 
ones. .................................................................................................... 34 
B. 
Plaintiffs have no valid classwide damages methodology. ................ 37 
1. 
Plaintiffs have no valid measure of economic damages. .......... 37 
2. 
Plaintiffs have no valid classwide measure of “customer 
service” harm. ........................................................................... 40 
3. 
Plaintiffs have no valid classwide measure of “emv chip” 
harm. ......................................................................................... 42 
III. 
The “best” Plaintiffs cannot be typical or adequate class 
representatives. .............................................................................................. 42 
IV. 
A class action is not superior to a comprehensive regulatory 
remediation. ................................................................................................... 44 
CONCLUSION ........................................................................................................ 45 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
A.B. v. Hawaii State Dep’t of Educ., 
30 F.4th 828 (9th Cir. 2022) ......................................................................... 42, 43 
Abikar v. Bristol Bay Native Corp., 
2018 WL 6593747 (S.D. Cal. Dec. 14, 2018) (Curiel, J.) .................................. 34 
Almon v. Conduent Bus. Servs., LLC, 
2022 WL 4545530 (W.D. Tex. Sept. 28, 2022) ........................................... 23, 24 
In re Bank of Am. Cal. Unemployment Bens. Litig., 
544 F. Supp. 3d 1366 (J.P.M.L. 2021) ............................................................... 12 
In re Bank of Am. Cal. Unemployment Bens. Litig., 
674 F. Supp. 3d 884 (S.D. Cal. 2023) ................................................................ 14 
Bayer v. Neiman Marcus Grp., 
861 F.3d 853 (9th Cir. 2017) .............................................................................. 38 
Berger v. Home Depot USA, Inc., 
741 F.3d 1061 (9th Cir. 2014) ............................................................................ 30 
Broussard v. Meineke Discount Muffler Shops, 
155 F.3d 331 (4th Cir. 1998) ........................................................................ 26, 27 
Comcast Corp. v. Behrend, 
569 U.S. 27 (2013) ................................................................................... 4, 37, 42 
Conde v. Sensa, 
2018 WL 4297056 (S.D. Cal. Sept. 10, 2018) ................................................... 45 
In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust 
Litig., 
691 F.2d 1335 (9th Cir. 1982) ................................................................ 24, 30, 31 
Cordoba v. DirecTV, LLC, 
942 F.3d 1259 (11th Cir. 2019) .................................................................... 35, 38 
Daskalea v. Wash. Humane Soc’y, 
275 F.R.D. 346 (D.D.C. Aug. 10, 2011) ............................................................ 28 
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Derrick v. Glen Mills Sch., 
2024 WL 2133440 (E.D. Pa. May 13, 2024) ..................................................... 28 
In re Digital Music Antitrust Litig., 
321 F.R.D. 64 (S.D.N.Y. 2017) .......................................................................... 43 
Duncan v. Northwest Airlines, Inc., 
203 F.R.D. 601 (W.D. Wash. 2001) ................................................................... 30 
Ellis v. Costco Wholesale Corp., 
285 F.R.D. 492 (N.D. Cal. 2012) ....................................................................... 34 
Ellis v. Costco Wholesale Corp., 
657 F.3d 970 (9th Cir. 2011) .............................................................................. 44 
English v. Apple Inc., 
2016 WL 1188200 (N.D. Cal. Jan. 5, 2016) ...................................................... 30 
In re Ford Motor Co. Ignition Switch Prod. Liab. Litig., 
194 F.R.D. 484 (D.N.J. 2000) ............................................................................ 32 
Gates v. Rohm & Haas Co., 
655 F.3d 255 (3d Cir. 2011) ............................................................................... 40 
Gen’l Tel. Co. of S.W. v. Falcon, 
457 U.S. 147 (1982) ........................................................................................... 17 
Halliburton Co. v. Erica P. John Fund, Inc., 
573 U.S. 258 (2014) ........................................................................................... 17 
In re Hannaford Bros. Co. Cust. Data Sec. Breach Litig., 
4 A.3d 492 (Me. 2010) ....................................................................................... 41 
Hanon v. Dataproducts Corp., 
976 F.2d 497 (9th Cir. 1992) .............................................................................. 43 
Hansen v. Ticket Track, Inc., 
280 F. Supp. 2d 1196 (W.D. Wash. 2003) ......................................................... 19 
Herskowitz v. Apple, Inc., 
301 F.R.D. 460 (N.D. Cal. 2014) ................................................................. 33, 37 
Houston v. Fifth Third Bank, 
2019 WL 1200574 (N.D. Ill. Mar. 14, 2019), 2019 WL 3002965 
(N.D. Ill. July 10, 2019) ............................................................................... 25, 29 
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James v. Uber Techs. Inc., 
338 F.R.D. 123 (N.D. Cal. 2021) ....................................................................... 43 
Kamm v. Cal. Dev. Co., 
509 F.2d 205 (9th Cir. 1975) .......................................................................... 5, 45 
Kleef v. Goodman Mfg. Co., L.P., 
2015 WL 4512200 (E.D. Ark. July 24, 2015) .............................................. 40, 41 
Knerr v. Fed’l Land Bank, 
1991 U.S. App. LEXIS 2964 (9th Cir. Feb. 25, 1991) ....................................... 31 
In re LIBOR-Based Fin. Instruments Antitrust Litig., 
299 F. Supp. 3d 430 (S.D.N.Y. 2018) ................................................................ 40 
Manion v. N.C. Med. Bd., 
693 F. App’x 178 (4th Cir. 2017) ................................................................. 27, 28 
Mazza v. Am. Honda Motor Co., 
666 F.3d 581 (9th Cir. 2012) .............................................................................. 35 
Melnick v. TAMKO Bldg. Prod. LLC, 
347 F.R.D. 79 (D. Kan. 2024) ............................................................................ 32 
Merisier v. Bank of Am., N.A., 
688 F.3d 1203 (11th Cir. 2012) .......................................................................... 20 
Moore v. Southtrust Corp., 
2005 U.S. Dist. LEXIS 42062 (E.D. Va. June 10, 2005) ....................... 20, 23, 29 
Nelson v. Conduent Bus. Servs. LLC, 
2020 WL 5587450 (N.D. Ga. Sept. 18, 2020) ................................................... 23 
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 
31 F.4th 651 (9th Cir. 2022) (en banc) ............................................................... 35 
Park v. Webloyalty.com, Inc., 
2019 WL 1227062 (S.D. Cal. Mar. 15, 2019) .................................. 24, 25, 38, 40 
Pedersen v. State Farm Mut. Auto. Ins. Co., 
2022 WL 2304042 (D. Mont. June 27, 2022) .................................................... 31 
In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 
214 F.R.D. 614 (W.D. Wash. 2003) ............................................................. 44, 45 
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In re Prempro, 
230 F.R.D. 555 (E.D. Ark. 2005) ....................................................................... 32 
Rosenfeld v. JPMorgan Chase Bank, N.A., 
732 F. Supp. 2d 952 (N.D. Cal. 2010)................................................................ 33 
Rowe v. E.I. Dupont de Nemours & Co., 
262 F.R.D. 451 (D.N.J. 2009) ............................................................................ 32 
Roz v. Nestle Waters N. Am., Inc., 
2017 WL 6942657 (C.D. Cal. Sept. 13, 2017) ................................................... 30 
SleekEZ, LLC v. Horton, 
2018 U.S. Dist. LEXIS 33858 (D. Mont. Jan. 8, 2018) ..................................... 31 
Stockwell v. City & Cnty. of S.F., 
749 F.3d 1107 (9th Cir. 2014) ............................................................................ 18 
TransUnion LLC v. Ramirez, 
141 S. Ct. 2190 (2021) ................................................................................... 4, 34 
Tyson Foods, Inc. v. Bouaphakeo, 
136 S. Ct. 1036 (2016) ................................................................................. 34, 39 
U.S. v. Thomas, 
No. 23-0062, ECF 1 (N.D. Ohio Feb. 9, 2023) .................................................. 36 
Wal-Mart Stores, Inc. v. Dukes, 
564 U.S. 338 (2011) ................................................................................. 2, 18, 27 
Webb v. Carter’s Inc., 
272 F.R.D. 489 (C.D. Cal. 2011) ................................................................. 44, 45 
White v. Symetra Assigned Bens. Serv. Co., 
104 F.4th 1182 (9th Cir. 2024) ............................................................... 29, 30, 34 
Williams v. Warner Music Grp., 
858 F.3d 385 (9th Cir. 2021) .............................................................................. 44 
Yick v. Bank of Am., N.A., 
No. 21-0376 (N.D. Cal.) ..................................................................................... 12 
Statutes 
15 U.S.C. § 1693 et seq. .......................................................................................... 12 
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15 U.S.C. § 1693a(12)(B) ........................................................................................ 20 
15 U.S.C. § 1693g(a) ............................................................................................... 19 
15 U.S.C. § 1693g(b) ............................................................................................... 13 
28 U.S.C. § 2072(b) ................................................................................................. 39 
Other Authorities 
12 C.F.R. § 1005, Supp. I at 11(c)(4) ................................................................ 15, 25 
12 C.F.R. § 1005.2(b)(1) ......................................................................................... 19 
12 C.F.R. § 1105.11(c) ............................................................................................ 24 
FED. R. CIV. P. 12(b)(6) ............................................................................... 14, 24, 31 
FED. R. CIV. P. 23 .............................................................................................. passim 
 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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This multidistrict litigation arises from an explosion in criminal fraud targeting 
California’s unemployment benefits program during the COVID-19 pandemic. When 
many unemployed Californians relied on government assistance, over a million 
fraudsters—including organized crime rackets, gangs, international money launder-
ers, prison inmates, petty thieves, and even regular citizens seizing opportunities to 
game the system—targeted the agency providing assistance with fraudulent benefits 
claims. The State Auditor called it a “criminal assault on the benefits system.” DX 
10. Estimates of the amounts stolen in California exceed $32 billion. See DX 11. 
A decade before the pandemic, California’s Employment Development De-
partment (EDD) contracted with Bank of America (BANA) to issue the prepaid debit 
cards that millions of legitimate beneficiaries used to receive and spend their benefits. 
But after the attacks on EDD, cardholders also included—unknown to BANA—over 
a million fraudsters. Not content only to reap unearned benefits from the government, 
many of these criminals perpetrated 
 
 
. 
Presently before the Court is a motion by Plaintiffs to certify a class of card-
holders complaining about BANA’s efforts to police these frauds. ECF 324 (“Mot.”). 
Fatally, however, Plaintiffs do not limit their putative classes to legitimate cardhold-
ers with bona fide claims, and they propose no effective and clear method to ensure 
that criminal fraudsters will not share in a class recovery. Nor could they. Fraud art-
ists are very good at what they do—after all, they convinced EDD to approve their 
fake benefit applications and then evaded detection long enough to steal tens of bil-
lions of dollars. 
 
 
 
  
To fight this cascade of fraud perpetrated on EDD, which then became 
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BANA’s shared challenge because every approved applicant received a BANA pre-
paid card loaded with benefits, BANA launched and pursued a universe of vigorous 
antifraud efforts; these included, among other features, 
 
 
. 
Ironically, Plaintiffs’ ostensible hook for gathering these “many thousands” of dis-
parate cardholders into a class whose claims can be resolved with the requisite “one 
stroke” of common evidence is to define their putative class based on a single aspect 
of one fraud-prevention process BANA deployed in the worst days of the crisis, in 
September 2020. Mot. at 2, 4; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).  
This is a significant and surprising revision of the theories of liability Plaintiffs 
previously pursued and pled in their complaint. Plaintiffs initiated these lawsuits 
challenging BANA’s pandemic response very broadly. They imagined that every sin-
gle EDD cardholder had some grievance against BANA and sought to certify a class 
of millions. Now their challenge relates to a single criterion BANA used in its “fraud 
filter.” 
 
 
 
  
Plaintiffs argue that their legal claims will rise or fall on the “common” ques-
tion of whether Indicator 1 was a reasonable anti-fraud device. But that approach 
does not remove the individualized circumstances and facts that are critical to resolv-
ing their legal claims. 
 
 does 
not resolve the problem that Plaintiffs do not automatically win even if their critiques 
of BANA’s efforts to fight crime are correct; for example, even legitimate benefits 
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recipients falsely reported transactions as unauthorized—some with fraudulent in-
tent, some by pure, honest mistake—or reported their disputes too late or too vaguely 
to invoke the legal protections on which their claims are based. 
Plaintiffs’ strategy for clearing those obstacles relies on regulatory inquiries 
BANA settled through consent orders in 2022 with the Consumer Financial Protec-
tion Bureau and the Office of the Comptroller of the Currency. 
 
 
 
But that assumption is wrong. The settlements cannot be used to end-run Plain-
tiffs’ burden of proving with common evidence, in the requisite single stroke, that 
every member of their putative classes had a legitimate account and a valid dispute 
that BANA improperly denied. 
 
 
 
 
 
 
 
  
The class-action device does not let Plaintiffs leverage this settlement as a 
method of proving their legal claims. The burden is on Plaintiffs to furnish some 
method of weeding out putative class members with no claim and no compensable 
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injury, without individual inquiries predominating. See TransUnion LLC v. Ramirez, 
141 S. Ct. 2190 (2021). And instead of trying to carry that burden, they just attempt 
a shortcut around it, pretending the obvious heterogeneity within the putative class 
does not exist. The result is that Plaintiffs would award windfall damages to many 
criminals who were very likely committing fraud. The record submitted with this 
opposition shows the class, as they define it, 
—and 
whose claims, therefore, cannot be adjudicated by a wave of the hand toward the 
fraud filter or consent order. 
 
 
 
 
 Even if Indicator 1 
weren’t in use, these claims would likely have been disallowed under 
. These and other 
individual inquiries—based on Plaintiffs’ own statements of the elements of their 
claims and the questions they raise—negate Plaintiffs’ contentions that common ev-
idence can resolve their claims in a single stroke. 
A separate insurmountable hurdle arises because Plaintiffs also have the bur-
den of proposing a methodology to calculate damages on a classwide basis. See Com-
cast Corp. v. Behrend, 569 U.S. 27 (2013). Here, too, they try to use the settlements 
to shortcut, rather than carry, that burden. Their damages methodology consists of a 
purported “expert” saying that the putative classes’ damages consist of what they 
were already paid under the settlements. But instead of taking that premise to its 
logical (and legal) conclusion and determining that they have no more damages war-
ranting compensation, Plaintiffs insist that they be paid that money they have already 
been paid again (and again, and again, and again—their “expert” duplicates the same 
measure for the same alleged harms under multiple categories of damages). 
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This undue reliance on the regulatory settlements raises the question of why 
this case should even be a class action at all. The problem is not only the predomi-
nating individual inquiries into whether people paid under the settlement were nec-
essarily entitled to it. Equally problematic is that Plaintiffs are trying to win payouts 
for classes definitionally limited to people who already got fully compensated (
 
). Rule 23 not only requires this Court to assess 
whether a class action is administratively feasible, but whether it is the superior 
method of resolving a controversy. This requirement is not met where a parallel reg-
ulatory proceeding has already provided significant relief. See Kamm v. Cal. Dev. 
Co., 509 F.2d 205 (9th Cir. 1975). Plaintiffs actually admit that not merely significant 
relief, but full compensation, has already been paid, and further admit that the sole 
raison d’être for this case is to subject that compensation to a treble-damages multi-
plier (on top of their already-duplicative and excessive compensatory-damages cal-
culations). Mot. at 15. Their candor is refreshing, but it does not pass the Kamm test. 
There are no putative class members before the Court with unpaid damages. 
But there are putative class members with no claim and no damages. And there are 
putative class members who took part in the massive fraud on the State of California, 
the taxpayers, and BANA, and now stand to compound their ill-gotten gains with an 
ill-gotten share of a class recovery. In the context of a national emergency, there 
might have been reasons for EDD to prioritize getting money out the door as fast as 
possible, even at the cost of approving fraudsters; 
 But in the context of a court proceeding, this beneficence reaches its consti-
tutional limit. Article III and Rule 23 do not allow the class-action device to pay 
criminals, the uninjured, and others with no valid claims just because it is adminis-
tratively easier. BANA thus respectfully submits that however valid some individual 
grievances might be, this is a case where class certification is not merely 
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inappropriate, but harmful. Plaintiffs’ motion should be denied. 
BACKGROUND 
A. The Pandemic Benefit Scams 
In March 2020, the COVID-19 pandemic drove the economy into a sudden 
and deep recession. As unemployment rose to nearly 15%, the federal government 
passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which 
funded a unique benefits program called Pandemic Unemployment Assistance. PUA 
opened unemployment benefits to workers not previously eligible under traditional 
programs (e.g., self-employed, contract workers, gig workers, and under-employed 
workers). 
 
 
 At the same time, California loosened its verifica-
tion requirements for benefits. 
 
 
 
The unprecedented situation exposed the system to massive fraud. By January 
2021, California estimated incurring between $11.4 and $31 billion in fraud losses, 
and attributed 95% of it to the PUA program’s “lower standard of identity and wage 
information,” “due to federal policymakers’ decision to prioritize immediate assis-
tance.” DX 13 at 5. Subsequently, the U.S. GAO estimated that 11 to 15% of unem-
ployment benefits paid during the pandemic were fraudulent, and the Department of 
Labor (DOL) reported in August 2023 that PUA had an improper payment rate of 
35.9%. DX 14 at 6. Other estimates have improper PUA payments reaching as high 
as $400 billion nationwide (about a 40% loss rate for the taxpayers). DX 15 at 2. 
EDD was not without fault in exacerbating the problem. It adopted a “pay and 
chase” policy, instructing its agents not to let eligibility checks delay getting benefits 
out the door. DX 14 at 7, 28. The State Auditor and House Oversight Committee 
members found that EDD failed to implement fraud detection or identity verification 
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technology until far too late, ignored repeated Inspector General warnings, and ap-
proved at least $10.4 billion in benefits without verifying recipients’ identities. Id. at 
7. Also at fault was the State’s decision to let claimants self-certify prior wages and 
employment history. Id. at 16. “With the lack of verifiable criteria regarding eligibil-
ity,” EDD would later report, “fraud increased.” DX 16 at 3. Additionally, as reported 
by the State Auditor, EDD mailed at least 51 million documents to unemployment 
claimants between 2017 and 2020 that included their full Social Security numbers, 
exposing them to identity theft. DX 17 at 1–3.  
 
 
 
 
 
 
 Hundreds of thousands of accounts were frozen based on EDD information, but 
too late to prevent the theft of tens of billions in State and federal funds. 
 
 
 
 
 
EFTA protects debit-card users from certain losses if the use of the card was 
unauthorized. BANA, like most institutions, generally implemented these protections 
by 
 
. That process works fine in ordinary circum-
stances but was ill-suited to addressing a tsunami of new card accounts and the related 
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massive crime spree targeting the provisional credits. 
 
 
 
 
 
Plaintiffs devote an entire expert report to praising the investigation procedures 
for unauthorized-transaction claims that BANA followed at this time—
 
—as industry-standard. See 
PX 1. But BANA’s claims analysts were overwhelmed by the massive fraud-driven 
spike in cardholders and disputes. So too were BANA’s customer-service resources. 
 
 
 
 
 
 
 
 
 
 
Plaintiffs attack BANA for deciding “to protect itself” from these frauds, but 
grudgingly acknowledge the frauds targeted State and federal money, so BANA was 
also protecting California and U.S. taxpayers, 
 
 Those efforts culminated in new antifraud procedures Plain-
tiffs criticize as “aggressive” and “hastily devised.” Mot. at 8, 42. The loaded words 
“aggressive” and “hastily” do most of Plaintiffs’ heavy lifting, but 
 
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 Meanwhile, FinCEN 
and the Secret Service continued issuing alerts to BANA and others about rising ben-
efits fraud, encouraging financial institutions to perform additional inquiries and in-
vestigations where appropriate to identify “red flags indicating [UI] fraud,” including 
suspicious, rapid disbursements from benefits accounts. DX 2 ¶ 33. 
B. The “Magnetic Stripe” Red Herring 
Since the proliferation of criminal fraudsters in Plaintiffs’ putative classes un-
dermines their plea for class treatment, Plaintiffs need some explanation for the ex-
plosion in unauthorized-charge reports that diverts attention from cardholder fraud. 
The explanation they propose is that the EDD cards were vulnerable to theft because 
they had traditional magnetic stripes instead of EMV chips. Plaintiffs also claim (and 
have their purported experts assume) that EMV chips would have prevented every 
purportedly unauthorized ATM withdrawal. PX 2 ¶ 118. 
 
 
 
 
 
 
 
 
 
 
 
 The biggest source of fraud was fraudulent claims on the benefits 
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themselves. See supra Part A. None of these frauds have anything to do with mag-
netic stripes. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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C. The Complaints and Centralization 
This matter originated in ten lawsuits filed on behalf of plaintiffs claiming to 
have been erroneously caught up in BANA’s efforts to mitigate the fraud surge. The 
lead case, Yick v. Bank of Am., N.A., No. 21-0376 (N.D. Cal.), pled a putative class 
broadly encompassing “[a]ll persons who were issued or who used a BANA debit 
card for the purpose of accessing EDD benefits deposited into a BANA account,” on 
the dubious premise that BANA’s antifraud efforts had somehow harmed every card-
holder without catching a single actual fraudster. Id., ECF 63, ¶ 185. 
The putative classes Plaintiffs seek to certify now are much narrower. The road 
from there to here begins with the parties negotiating a preliminary injunction which 
had BANA expand its call-center capacity, commit to reopen investigations into dis-
puted transactions that were closed or denied based on fraud-filter determinations, 
and agree not to consider the fraud-filter results in investigating claims. See Yick, 
ECF 100. (The injunction was dissolved as of June 1, 2024. ECF 255.) 
On June 4, 2021, the Judicial Panel on Multidistrict Litigation granted the Yick 
plaintiffs’ motion to centralize it with nine related actions, and transferred them to 
Judge Burns. See In re Bank of Am. Cal. Unemployment Bens. Litig., 544 F. Supp. 
3d 1366 (J.P.M.L. 2021). A number of tagalongs followed. See ECF 17–24, 27, 54, 
62, 96, 100, 104, 109, 111, 113, 117. On August 17, 2021, Plaintiffs filed a consoli-
dated complaint on behalf of 25 class representatives and 240 more named Plaintiffs, 
asserting fourteen causes of action under EFTA, 15 U.S.C. § 1693 et seq., California 
law, and the federal and California due-process clauses. See ECF 72. 
D. The Regulatory Consent Orders and Remediation Plan 
In July 2022, BANA entered into consent orders with its two primary regula-
tors, the CFPB and the OCC, that Plaintiffs describe as “resolv[ing] issues and claims 
that substantially overlap with many of the claims and requests for relief before this 
Court in the MDL.” ECF 106 at 2. As part of the settlements, BANA committed to a 
remediation plan 
 
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 That process is ongoing.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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E. The Dismissal Ruling and Amended Complaints 
On May 25, 2023, Judge Burns granted in part and denied in part a motion to 
dismiss. See In re Bank of Am. Cal. Unemployment Bens. Litig., 674 F. Supp. 3d 884 
(S.D. Cal. 2023). The Court dismissed 83 Plaintiffs, consisting of: 
• 15 Plaintiffs who failed to allege “provid[ing] timely notice” EFTA re-
quires of “the consumer’s belief . . . that an error exists.” 
• 4 Plaintiffs whose notices came “after the 60-day period,” which “can’t 
support a claim under the statute.” 
• 31 Plaintiffs whose dispute notices were too vague and “general.” 
• 16 Plaintiffs whose notices were specific enough, but didn’t “constitute a 
‘qualifying error’ under the statute,” including 10 where “a third party ap-
plied for and/or received EDD benefits in their name,” two where “a third 
party tried to change their account address,” one who alleged “her phone 
containing her account information was stolen,” one who alleged her card 
was stolen, and two who “allege[d] fraud when [they] w[ere] unable to 
access [their] account[s].” The Court declined to dismiss others who argu-
ably provided insufficient notice, not because their notices were sufficient, 
but because they didn’t need “such detail” at the Rule 12(b)(6) stage. 
• 16 Plaintiffs “who reported account freezes alone,” because “EFTA . . . 
does not define account freezes as an ‘error’” and these Plaintiffs did not 
allege making any other requests when they reported account freezes. 
• One Plaintiff who received prompt credit for her unauthorized transaction 
and thus “lack[ed] a concrete injury sufficient for Article III standing.” But 
the Court declined to dismiss other Plaintiffs whose standing [BANA] 
challenged on the ground that they were “fully reimbursed,” finding they 
had additional damages like missing mortgage payments and utility bills. 
Id. at 906–14. The Court declined to dismiss the complaint for failure to plead 
BANA’s investigations were unreasonable. Referencing an official interpretation of 
Regulation E providing that an investigation must encompass “information within 
[the financial institution’s] own records pertaining to the particular account in ques-
tion,” the Court found that the complaint “could be more detailed as to what specific 
information should have been reviewed” but had said enough for Rule 12(b)(6) 
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transactions on the cards’ magnetic stripes because she claimed she never used her 
cards, anywhere. ECF 304 ¶ 200; DX 53 at 9–10. 
As for the facts behind the rest of the putative class, it is anybody’s guess. The 
only thing that can be said for sure is that each putative class member 
 
. Plaintiffs have no 
evidence whether these or any other disputes were valid, let alone how many were 
actually criminal frauds. Nor do Plaintiffs have any evidence of how many putative 
class members were entitled to EDD benefits in the first place.  
Recognizing these fatal obstacles to defining a putative class uniformly enti-
tled to damages based on common evidence, Plaintiffs ground their motion on the 
theory that the CFPB remediation plan already solves that problem for them. 
 
 As already shown, that isn’t true. Some portion were arguably 
“wronged” (if Plaintiffs prove their case), and were paid for it; others weren’t, but 
were paid anyway. 
 
 
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obviously learn of many more if every putative class member had to submit to dis-
covery and depositions and undergo the same careful review BANA gave to Plain-
tiffs. Under these circumstances, the foundational assumption that they can carry 
their Rule 23 burdens by outsourcing them to BANA’s remediation plan crumbles. 
STANDARD OF LAW 
As the proponents of certification, Plaintiffs “must actually prove—not simply 
plead—that their proposed class satisfies each requirement of Rule 23.” Halliburton 
Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 275 (2014). The Court may grant 
certification only if it concludes, “after a rigorous analysis, that the prerequisites” of 
Rule 23 have been met. Gen’l Tel. Co. of S.W. v. Falcon, 457 U.S. 147, 161 (1982). 
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ARGUMENT 
I. Plaintiffs’ “common questions” cannot drive the resolution of this litigation. 
Rule 23(a) requires Plaintiffs to proffer a common contention “capable of 
classwide resolution—which means that determination of its truth or falsity will re-
solve an issue that is central to the validity of each one of the claims in one stroke.” 
Wal-Mart, 564 U.S. at 350. Plaintiffs try to carry this burden with a list of 28 ques-
tions they say can be resolved without reference to individual facts. See Mot. at 16–
18. It does not suffice. “What matters to class certification . . . is not the raising of 
common ‘questions’—even in droves—but rather, the capacity of a classwide pro-
ceeding to generate common answers apt to drive the resolution of the litigation.” 
Wal-Mart, 564 U.S. at 350. Plaintiffs’ 28 questions might amount to a mini-drove, 
but they are not apt to drive the resolution of the litigation when other questions 
central to the validity of each claim cannot be resolved with common evidence.  
Assessing commonality begins with “identify[ing] the elements of the class 
members’ case-in-chief.” Stockwell v. City & Cnty. of S.F., 749 F.3d 1107, 1114 (9th 
Cir. 2014). Comparing the elements of each cause of action with Plaintiffs’ proposed 
“common questions” leaves a Venn diagram with far too little overlap for those ques-
tions to drive the resolution of the litigation. The proposed “common questions” both 
(i) include elements that are not actually “common” and (ii) omit elements “central 
to the validity” of each individual claim—which also aren’t common. 
A. Essential elements of Plaintiffs’ EFTA claim require individual evidence. 
The “common questions” Plaintiffs pose about their primary EFTA claim in-
clude five questions about the existence and nature of bank “polic[ies]” and one ques-
tion about whether BANA’s conclusion “that the customer’s account was not in error 
. . . could not reasonably have been drawn from the evidence available to the financial 
institution at the time of its investigation.” Mot. at 16–17 (quoting 15 U.S.C. § 
1693f(e)). That question is not “common” at all. “[T]he evidence available” in each 
individual account file is necessarily individualized. Meanwhile, Plaintiffs’ list of 
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questions omits other questions central to the validity of an EFTA claim, which also 
aren’t common. These include core questions we know cannot generate common an-
swers across a class of a hundred thousand because they already generated disparate 
answers just among the Plaintiffs who have already disappeared from this case. 
1. Essential questions about fraudulent benefits claims are not common. 
To assert EFTA claims, plaintiffs must show their accounts were “established 
primarily for personal, family, or household purposes,” not criminal purposes. 12 
C.F.R. § 1005.2(b)(1). Fraudulently obtained accounts get no protection. This analy-
sis of “‘personal, family, or household purposes’ is a fact driven one, and should be 
decided on a case-by-case [] basis.” Hansen v. Ticket Track, Inc., 280 F. Supp. 2d 
1196, 1204 (W.D. Wash. 2003). That is fatal to commonality. Plaintiffs propose no 
method to prove in “one stroke” that their hundred-thousand-person putative class 
population has been 100% purged of criminal fraudsters. 
 
 The DOL said it “trusts that states have done all 
they can to track down fraudulent payments yet has no mechanism to determine if 
this action has actually occurred.” DX 14 at 30. It manifestly hasn’t occurred to any-
where near the full extent of the fraud, given the DOL estimates that 35.9% of all 
PUA benefits paid were illegitimate and that states had managed to recover only $6.8 
billion out of at least $191 billion in improper benefits payments. DX 54; 14 at 6. 
That is just a small fraction of the amount stolen in California alone. There is no 
scenario in which this litigation can do in “one stroke” what the federal and California 
governments failed to do with all of the resources available to them. 
2. Essential questions about transaction authorizations are not common. 
Equally central to the resolution of Plaintiffs’ EFTA claims is whether the 
transactions challenged by each individual cardholder were in fact “unauthorized.” 
15 U.S.C. § 1693g(a). Plaintiffs’ claims hinge on allegations that they were and that 
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BANA’s alleged failure to credit them therefore violated EFTA. See, e.g., ECF 304 
¶ 536(i). Putative class members who authorized the challenged withdrawals, either 
intending to file fraudulent disputes or who simply reported authorized transactions 
by mistake, cannot recover. See 15 U.S.C. § 1693a(12)(B) (transaction “initiated with 
fraudulent intent” cannot be appealed to card issuer as “unauthorized”); Merisier v. 
Bank of Am., N.A., 688 F.3d 1203, 1210 (11th Cir. 2012) (“withdrawal does not be-
come an ‘error’ simply because a customer later disputes it—particularly when the 
error was manufactured as part of a fraudulent scheme”).  
This cannot be done with common evidence. Fraudulent intent is a case-by-
case inquiry. See, e.g., Moore v. Southtrust Corp., 2005 U.S. Dist. LEXIS 42062, at 
*27–28 (E.D. Va. June 10, 2005) (concluding that “the plaintiff had fraudulent intent 
with regard to the alleged unauthorized transactions” based on “a history of filing 
fraud claims for provisional credit with other banks” and testimony “admit[ting] that 
his wife actually made the charges for which he received provisional credit”). 
 
 
 
 
 
 
 
 
 
 
 The examples that follow demonstrate that there are factual is-
sues about whether some or all of these cardholders (and countless others) deserved 
to have had their claim denied, and common evidence will not resolve them. 
 
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habits.” Park v. Webloyalty.com, Inc., 2019 WL 1227062, at *8, *14 (S.D. Cal. Mar. 
15, 2019) (“individual issues predominate” on EFTA claim; finding plaintiff atypical 
because the timeliness issue was “based on facts unique to him”). 
4. “The evidence available” on each account is not common. 
Plaintiffs cannot prevail on the alleged failure to honor a claim that a transac-
tion was unauthorized unless the trier of fact concludes that it was unauthorized. 
Plaintiffs also seek treble damages with a showing that BANA “knowingly and will-
fully” denied their disputes “when such conclusion could not reasonably have been 
drawn from the evidence available to the financial institution at the time.” Mot. at 17 
(quoting 15 U.S.C. § 1693f(e)). By its own terms, the conclusions that could reason-
ably have been drawn from the evidence available” on each “consumer’s account” 
depend on each individual consumer’s account. Indeed, Judge Burns’ 2023 ruling 
cited regulatory guidance expressly stating that the reasonability of BANA’s deter-
minations must be adjudicated by reference to its records “pertaining to the particu-
lar account in question.” 674 F. Supp. 3d at 911–12 (quoting 12 C.F.R. § 1005, Supp. 
I at 11(c)(4)). This is not common evidence and will not generate common answers. 
We have already seen what “the evidence available” on individual accounts 
looks like. 
 
 None of this can 
be evaluated for “
” claims in “one stroke.” Mot. at 16. A trial 
in which Plaintiffs put forward evidence about the nine “best” handpicked class rep-
resentatives will not drive the resolution of the claims Plaintiffs assert on behalf of 
R.R.S., D.D.D., M.M.G., Y.L., K.L.S., or any other putative class member. All of 
these claims depend on “the evidence available” on their accounts. See, e.g., Houston 
v. Fifth Third Bank, 2019 WL 1200574, at *3–4 (N.D. Ill. Mar. 14, 2019) (dismissing 
EFTA claim because “evidence available” on the account “undermine[d] Plaintiff’s 
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allegation that he was at lifeguard tryouts at the time ‘many of the transactions oc-
curred’”), 2019 WL 3002965, at *3 (N.D. Ill. July 10, 2019) (reinstating repleaded 
EFTA claim because plaintiff supplied further evidence he “remained at the high 
school” after lifeguard tryouts). 
The discovery record already contains evidence about individual Plaintiffs 
whose claims would likely fall on the basis of the evidence available on their indi-
vidual accounts, much like the absent class member examples. For example, Plaintiff 
Tiffany Cochran claims to have suffered $30,000 in unauthorized transactions and 
that “she never received” multiple promised replacement cards. ECF 136 ¶ 328. 
 
 
 
 Plaintiff Amy Stanfill alleges $5,000 in unauthorized transac-
tions. ECF 136 ¶ 494. 
 
 
 
Plaintiffs’ response to these inconvenient episodes has been to narrow their 
class representatives to the ones with the “best” facts, and even to narrow their class 
definition in an effort to exclude some of the more easily proven fraud cases. For 
example, narrowing the putative class to 
 probably disqualifies Stanfill 
because her disputes also triggered 
 
 
 See supra Part I.A.2. Withdrawing class rep-
resentatives and voluntarily dismissing Plaintiffs who balked at subjecting their 
claims to discovery might obscure Plaintiffs’ commonality problem, but it does not 
eliminate it. See, e.g., Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 
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CASE NO. 21-MD-02992-GPC-MSB 
 
 
 
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no common answer on whether it was “due to” the magnetic stripe at all, much less 
“due to” the cards’ lacking EMV chips. 
 
 Plain-
tiffs and putative class members have in-person card swipes among their disputes, 
which EMV chips would not have prevented. EMV chips do not protect cards from 
being physically lost or stolen, either, as many Plaintiffs claim to have experienced. 
 see also Houston, 2019 WL 1200574, at *4 
(allegations of “frequent” skimming attacks “fail to save Plaintiff’s claim from dis-
missal because Plaintiff does not say that his own account was subjected to skimming 
or hacking,” so “Plaintiff is left only to speculate that his transactions ‘could have 
been’ part of a skimming or hacking scheme”). 
Plaintiffs’ logic seems to be that chips would at least have prevented disputed 
ATM withdrawals. That does not follow. Chipped cards still get lost or stolen. 
 
 
 
 See Moore, 2005 U.S. Dist. LEXIS 42062, at *26–27 (transactions 
were authorized because “the plaintiff allowed his wife to have access to his card”). 
Or it might be “due to” cardholders keeping their PIN scrawled on a Post-It note on 
the card or in their wallet, or committing fraud and disputing their own transactions. 
In any event, the answer varies from case to case. 
3. Common-law claims. Plaintiffs recycle their complaints about magnetic 
stripes for their common-law claims, and the proposed “common issues” suffer from 
the same problem. See Mot. at 17. Each cause of action has a causation element that 
Plaintiffs neglect to include among their purportedly common questions. See, e.g., 
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White v. Symetra Assigned Bens. Serv. Co., 104 F.4th 1182, 1193 (9th Cir. 2024). It 
is frequently observed that causation questions central to legal claims “require[] an 
individualized examination.” Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 
612 (W.D. Wash. 2001) (citing Abuan v. GE, 3 F.3d 329, 334 (9th Cir. 1993)). That 
defeats commonality, because whether there is any causal connection between mag-
netic stripes and Plaintiffs’ claimed injuries turns on each individual’s facts, just as 
the CCPA causation inquiry turns on each individual’s facts. See supra Part I.B.2. 
Along similar lines, Plaintiffs describe their negligence claim as resting on the 
purportedly “common” question of “whether the Bank . . . understaff[ed] its Claims 
call center,” but this question has no material place in the causal chain for cardholders 
with no complaints about the call center. That includes three of the nine remaining 
class representatives, so if they are indeed “representative” (a big if), then a third of 
the putative class also has no such grievance. Plaintiffs certainly have no basis for 
surmising that every single one of the 
 people they put in this putative class 
just for calling BANA within a two-month period has any grievance with the service 
they received (much less the same grievance). “No two calls were the same,” Roz v. 
Nestle Waters N. Am., Inc., 2017 WL 6942657, at *5 (C.D. Cal. Sept. 13, 2017), and 
thus the evidence necessary to prove that 
 people have grievances associated 
with an “understaff[ed]” call center is not going to be the same across the putative 
class, either.6 The putative class representatives’ own declarations make claims about 
their individual experiences that won’t apply to others.7 Most don’t describe the 
 
6 See, e.g., Berger v. Home Depot USA, Inc., 741 F.3d 1061, 1069–70 (9th Cir. 2014) 
(customer-service grievances require “individualized determination” because “oral” 
communications are “necessarily . . . unique”); English v. Apple Inc., 2016 WL 
1188200, at *10 (N.D. Cal. Jan. 5, 2016) (denying certification due to “significant 
and material variations” in consumer interactions). 
7 Compare ECF 324-11 ¶ 7 (Moon alleging customer-service representative told him 
he “was liable for the disputed transactions”), with ECF 324-15 ¶ 11 (Willrich alleg-
ing representative “gave [him] conflicting information,” “that there had been a glitch 
in the system and my funds would be returned shortly,” and that “the investigation 
was reopened” but he “never received any” documentation on it). 
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substance of their customer-service interactions at all. 
Recognizing this defect, Plaintiffs now reframe their negligence theory to con-
cern not the substance of their customer-service experiences, but the amount of time 
they spent on hold. See Mot. at 12. The six proffered representatives of this putative 
class all assert, in basically identical words, to have called BANA repeatedly and 
“spent more than an hour on hold each time.” ECF 324-8 ¶ 13, 324-11 ¶ 9, 324-12 ¶ 
11, 324-15 ¶ 10, 324-16 ¶ 12. Plaintiffs have no evidence this is true for all 
 
putative class members and thus rely on assertions about “average” hold times 
“likely” experienced by “many” of the 
 members of this putative class. Mot. 
at 12. Neither this supposition nor the reliance on a purported “average” can substi-
tute for actual evidence of what class members uniformly, rather than “likely,” expe-
rienced. See infra Part II.B (addressing Plaintiffs’ damages methodology). 
Elements specific to the individual claims also cannot be established with com-
mon proof. On the fiduciary-duty claim, Plaintiffs assert the alleged existence of a 
“special relationship” between BANA and EDD cardholders is a common question. 
Mot. at 17. It isn’t. There is usually no “special relationship” in the “arms-length” 
relationship between a bank and consumer. Knerr v. Fed’l Land Bank, 1991 U.S. 
App. LEXIS 2964, at *12 (9th Cir. Feb. 25, 1991). “[T]o determine the existence of 
a special relationship where it normally does not exist may require a fact intensive 
inquiry.” SleekEZ, LLC v. Horton, 2018 U.S. Dist. LEXIS 33858, at *9 (D. Mont. 
Jan. 8, 2018). It requires evidence of the bank “act[ing] as a financial advisor in some 
capacity.” Knerr, supra. That necessarily turns on the content of specific communi-
cations between the bank and individual cardholders, and thus “Plaintiffs’ motion 
fails to demonstrate that the special relationship inquiry could be answered in one 
stroke.” Pedersen v. State Farm Mut. Auto. Ins. Co., 2022 WL 2304042, at *24 (D. 
Mont. June 27, 2022). Judge Burns’ ruling at the Rule 12(b)(6) stage that Plaintiffs 
plausibly alleged a special relationship, 674 F. Supp. 3d at 934–35, does not carry 
them past the certification and trial stages where the Court must “consider the nature 
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and range of proof necessary to establish those allegations.” Petrol Prods., supra. 
Plaintiffs also claim the “breach” element of the negligence claim as a common 
question. Mot. at 17. Again, it is not. In Plaintiffs’ own terms, the requisite “breach” 
consists of actions as varying as failing to provide “reasonably timely and effective” 
“customer service” and failing to process claims “in a reasonably timely and adequate 
manner.” ECF 304 ¶ 587. Each of these are different alleged “breaches” that either 
did or did not happen to any individual cardholder. 
 
 
  
For the same reason the causation element is fatal for Plaintiffs, common-law 
affirmative defenses like contributory negligence defeat commonality even if Plain-
tiffs could advance their affirmative case with common evidence.8 Putative class 
members who compromised their own accounts by, for example, giving friends or 
family access to their cards or PINs cannot prevail without litigating their own con-
tributory negligence. See, e.g., DX 78 (Aders’ admission that a close friend he con-
sidered a “brother” had access to his card and may have made the unauthorized trans-
actions). Other affirmative defenses that destroy commonality include sophistication 
and lack of reliance, both relevant to the fiduciary-duty claim. 
Lastly, half the allegedly “common” questions Plaintiffs list on their claim al-
leging breach of the covenant of good faith and fair dealing are not common by their 
own terms. Whether BANA’s denial of putative class member disputes “was objec-
tively reasonable” (Mot. at 18) poses the same questions turning on individual ac-
count records as the EFTA claim. See supra Part I.A. Whether putative “class mem-
bers’ rights” were impaired by “reduced call center staffing” (Mot. at 18) likewise 
 
8 See, e.g., Melnick v. TAMKO Bldg. Prod. LLC, 347 F.R.D. 79, 108 (D. Kan. 2024) 
(denying certification because “contributory negligence” requires “consideration of 
individualized evidence and present[s] individualized inquiries”); In re Prempro, 230 
F.R.D. 555, 567 (E.D. Ark. 2005) (same, because “contributory negligence, . . . re-
quire[s] individual determinations”); In re Ford Motor Co. Ignition Switch Prod. 
Liab. Litig., 194 F.R.D. 484, 490 (D.N.J. 2000) (same). 
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poses the same individual questions about their call-center experiences already ad-
dressed. Plaintiffs also omit mentioning other essential elements of the claim, such 
as whether cardholders fulfilled their own contractual obligations. See Rosenfeld v. 
JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 968 (N.D. Cal. 2010). Cardhold-
ers who lent their cards and disclosed their secret PINs to their friends breached those 
contractual obligations and cannot recover. See DX 22.  
4. Unfair Competition Law. Plaintiffs seek to certify their UCL claims on the 
ground that BANA’s policies were “unfair” under the statute’s “balancing,” “im-
moral,” or “tethering” tests. Mot. at 36. The effort once again breaks down given the 
putative class definitions’ inability to distinguish between legitimate cardholders and 
criminal fraudsters, who obviously cannot be held to be treated “unfairly” from losing 
access to the money they were trying to steal. There is also no “unfairness” towards 
legitimate cardholders who were simply mistaken, whose dispute notices were un-
timely or insufficient, or who reported transactions made by someone whom they let 
access to their cards. Separately, Plaintiffs’ own statements of the purportedly com-
mon issues these tests involve do not describe issues capable of resolution with com-
mon evidence. Balancing the “gravity of the harm to the alleged victim” against “‘the 
utility’ of Bank policies” (Mot. at 36) involves two individual inquiries: Individual 
harms are obviously “unlikely to be susceptible to common resolution,” and “deter-
mining utility will likely require individualized determinations tailored to the partic-
ular circumstances of each class member’s transaction.” Herskowitz v. Apple, Inc., 
301 F.R.D. 460, 476 (N.D. Cal. 2014); see also infra Part II.B.  
5. Punitive damages. Lastly, Plaintiffs argue that their entitlement to punitive 
damages is a common issue because it depends on abstract moral questions, “not 
class members’ individual circumstances.” Mot. at 41. That is false on multiple lev-
els. Plaintiffs expressly put cardholders’ “individual circumstances” at issue, claim-
ing punitive damages turn on how “vulnerable” they are. Id. Separately, punitive 
damages must of course be tethered to putative class members’ actual damages (or 
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CASE NO. 21-MD-02992-GPC-MSB 
 
 
 
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lack thereof), so BANA is “entitled to individualized determinations of each [putative 
class member]’s eligibility.” Abikar v. Bristol Bay Native Corp., 2018 WL 6593747, 
at *9 (S.D. Cal. Dec. 14, 2018) (Curiel, J.). Plaintiffs’ own authority recognizes this. 
See Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 544 (N.D. Cal. 2012) (defend-
ant would have “the opportunity to present . . . individualized defenses which could 
defeat any individual class member’s claim to punitive damages”).  
II. Individual issues will predominate. 
“[E]ven if plaintiffs demonstrate that there are common questions of law or 
fact . . . , this does not perforce establish that these questions predominate over indi-
vidualized questions.” White, 104 F.4th at 1193–94. While “[t]he commonality and 
predominance inquiries overlap,” the latter imposes the higher bar and requires Plain-
tiffs to show that “common, aggregation-enabling, issues in the case are more prev-
alent or important than the non-common, aggregation-defeating, individual issues.” 
Id. at 1191–92 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)). 
A. The issues turning on individual cardholders are predominating ones. 
As already shown, evidence on individual accounts is capable of proving that 
transactions putative class members reported as unauthorized were in fact authorized. 
Some of these were likely honest mistakes on the cardholders’ part. Others were 
surely a part of the massive fraud against the EDD program. These criminals de-
frauded the government with false claims for benefits, defrauded BANA with false 
transaction disputes, or both. Certifying a class in this case would extend an untold 
number of these thefts and mistaken windfalls from a double-dip to a quadruple dip: 
whether by mistake or brazen fraud, these individuals have already collected benefits 
for which they were ineligible and/or account credits for which they were ineligible, 
and would stand to receive a class-action check for which they are also ineligible. 
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021), establishes that “[e]very 
class member must have Article III standing”—i.e., a “concrete injury in fact”—“in 
order to recover individual damages.” Id. at 2208-09. This Circuit, like most, once 
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enforced this requirement with a bright-line rule that “no class may be certified that 
contains members lacking Article III standing.” Mazza v. Am. Honda Motor Co., 666 
F.3d 581, 594 (9th Cir. 2012). After TransUnion, the Circuit rule remains that all 
members of any certified class must have injury sufficient to support standing. Olean 
Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 668 n.12 
(9th Cir. 2022) (en banc). To this end, “questions relat[ing] to the injury status of 
class members” require denying class certification when “individualized inquiries 
about such matters would predominate over common issues.” Id. at 668. 
Plaintiffs’ putative classes include multiple types of cardholders with no in-
jury: (i) criminals who defrauded the EDD with fraudulent benefits claims; (ii) legit-
imate beneficiaries and criminals alike who defrauded BANA with fraudulent trans-
action disputes; (iii) legitimate cardholders who disputed their own transactions by 
honest mistake; and (iv) legitimate cardholders already compensated for their poten-
tial injuries (see infra Part II.B). “At some point before it may order any form of relief 
to the putative class members, the court will have to sort out those plaintiffs who 
were actually injured from those who were not.” Cordoba v. DirecTV, LLC, 942 F.3d 
1259, 1264 (11th Cir. 2019). The process needed to do so here defeats predominance. 
The foundational premise of Plaintiffs’ class-certification argument is that nei-
ther they nor the Court need to worry about sorting out the uninjured, because BANA 
has already done it under the remediation plan. They contend that BANA “iden-
tif[ied] and compensated all wronged cardholders—a process that resulted in the 
Bank’s own records showing that 
% of EDD Cardholders whose claims the Bank 
denied under its CFF-1 Policies were in fact legitimate cardholder claimants.” Mot. 
at 3. So their proposed method of satisfying predominance is just to exclude “[t]he 
remaining 
% . . . from the class definitions.” Id. at 3 n.1. But Plaintiffs’ claim about 
the 
% simply isn’t true. 
 
 
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 Nor 
could it. Applications and other eligibility information reside with EDD, and EDD 
still hasn’t managed to sort it all out—as shown by the fact EDD is still retroactively 
disqualifying many cardholders each month. Criminal investigations continue, even 
with the pandemic and prepaid program behind us. See, e.g., U.S. v. Thomas, No. 23-
0062, ECF 1 (N.D. Ohio Feb. 9, 2023) (criminal indictment for defrauding BANA, 
California, and multiple other states with fraudulent benefits claims). The federal 
government concedes it has no way to assess whether or not the million or more 
people who defrauded EDD have or ever will be caught. See DX 79.  
In these circumstances, and in the context of a regulatory settlement, 
 
 
 
 
 
 
 
Plaintiffs cannot, therefore, argue that the remediation plan is a proxy for “le-
gitimate . . . claimants.” The sleight of hand confuses (i) what happened under the 
regulatory settlements, where the Bank agreed to take certain steps for cardholders, 
and (ii) what entitles a cardholder to win a legal lawsuit in court, after defeating the 
Bank’s defenses. For this lawsuit to proceed, illegitimate claimants still need to be 
sorted out, and those who remain still need to prove they would have prevailed on 
their error claim (had the filter not been used) under the law and contract that con-
strained their legally enforceable rights. Both of these steps will require a detailed 
process that is fact-intensive and draws on personal eligibility information, security-
camera footage, transaction history and location data, other sources of circumstantial 
evidence like social-media posts, and questioning the cardholders directly to deter-
mine if they lied, made mistakes, or authorized others to use their card. Nor can the 
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consent order plans even be used as a presumption of legitimacy. As long as BANA 
“is entitled to challenge its liability as to every individual class member”—as it in-
disputably is—then “the [] Court will face the same set of individualized issues as if 
the Plaintiffs’ presumption . . . did not exist.” Herskowitz, 301 F.R.D. at 472–73. 
B. Plaintiffs have no valid classwide damages methodology. 
Rule 23(b)(3) also places the burden on Plaintiffs of proffering a “common 
methodology” for measuring damages “on a classwide basis.” Comcast, 569 U.S. at 
42. Plaintiffs rely primarily on a report from financial consultant Greg Regan to carry 
this burden. See PX 4. But Regan’s methods are legally invalid and untethered to the 
amounts recoverable on Plaintiffs’ underlying claims. He also recycles the same pro-
posed methods repeatedly from one putative class to the next, and proffers them as 
cumulative damages calculations when in fact they double-count the same alleged 
harms over and over again. Id. ¶¶ 8–22. 
1. Plaintiffs have no valid measure of economic damages. 
Regan opines that damages for the Claim Denial, Credit Rescission, and Ac-
count Freeze putative can be measured first by “the total dollar value” of each claim 
BANA denied or rescinded, or “the total dollar value” in the frozen accounts. Id. ¶¶ 
38–39, 84–85, 98–100. Then he adds “consequential damages,” purporting to meas-
ure the cost to consumers for the period they lacked access to their funds. Id. 
“[T]he total dollar value” of each claim at issue is manifestly an invalid meas-
ure of damages. As a threshold matter, it fails to distinguish between cardholders 
entitled to be paid on their claims and those who made fraudulent or otherwise invalid 
claims BANA correctly denied. See supra Part I.A.2. But even were the Court to 
indulge Plaintiffs’ argument that they’ve accounted for this by relying on 
 
, it is still an invalid measure of damages. Putative class 
members were already paid that dollar value. Likewise, the Account Freeze putative 
class is definitionally limited to cardholders whose accounts were un-frozen. Paying 
them the “total dollar value” would therefore pay them the same money twice. It is 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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includes cardholders with substantial assets who needed no bridge loans, as Politico 
reported in coverage headlined, “Unemployment assistance to millionaires soared 
during pandemic.” DX 83. That’s because most of the funds at issue were PUA funds, 
which had no means-testing and extended to consultants and business owners. 
Because, as Regan concedes (PX 4 ¶¶ 49–51), the putative class necessarily 
includes consumers with varying credit profiles and financial circumstances, it also 
includes people who—if they sought substitute funds—turned to commensurately 
varying sources, and incurred commensurately varying costs in doing so. As U.C. 
Davis economist Victor Stango concludes in response: 
Furthermore, Mr. Regan’s methodology does not just obscure variation in 
“costs associated with obtaining substitute funds” for proposed class mem-
bers, it also overstates such costs for many proposed class members. It will 
necessarily overstate costs for consumers who do not borrow at rates as high 
as those assumed by Mr. Regan. It will overstate costs for proposed class 
members who cover substitute expenses out of zero-interest funds. It will 
overstate costs for consumers who cut back on expenses. It will overstate costs 
for proposed class members who can obtain funds from friends and family. It 
will overstate costs for consumers who can repay credit card debt before in-
curring an interest charge. And so on. 
DX 1 ¶ 68. 
No putative class member could come to this Court in an individual, non-class 
case, refuse to produce any evidence he or she ever sought any credit, and then claim 
damages based on the “average” or “median” cost of credit, as Regan proposes. Be-
cause the class-action device does not “abridge, enlarge or modify any substantive 
right” (28 U.S.C. § 2072(b)), it follows that Plaintiffs cannot do that when aggregated 
together as a class, either. See Tyson Foods, Inc., 577 U.S. at 454–55 (“representative 
or statistical” evidence proper in a class action only if “each class member could have 
relied on that sample to establish liability if he or she had brought an individual ac-
tion”). In Gates v. Rohm & Haas Co., 655 F.3d 255, 260 (3d Cir. 2011), plaintiffs 
sought to represent a putative class claiming chemical exposure with expert testi-
mony about “the average amount of exposure for residents of the village.” The Third 
 
 
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Circuit affirmed that “averag[ing] the class members exposures” was “unsuitable as 
common proof” and not “probative of any individual’s claim because any one class 
member may have an exposure level well above or below the average.” Id. at 261, 
266. Regan’s “averages” and “medians” are squarely analogous. Any putative class 
member might never have accessed credit at all, or have done so at a cost “well above 
or below the average.” Id.; see DX 1 ¶¶ 55–70. 
Similarly individualized are the damages calculations Regan purports to make 
based on “the time value of money” for the period in which cardholders allegedly 
lacked access to frozen funds. PX 4 ¶ 100. Here, Regan proposes individual damages 
calculations based on how long each account was frozen. Id. ¶¶ 102–06. But Regan 
continues to rely on statistics about average interest rates to attach a monetary value 
to those time periods. This is improper. Harm (if any) from lacking access to funds 
requires evidence about the actual consumer, not generic averages. See Park, 2019 
WL 1227062, at *9 (“damages for temporary deprivation of [] money” cannot be 
calculated “on a classwide basis; determining the amount of interest forgone or the 
value of lost opportunities would necessarily entail highly individualized fact-find-
ing”); In re LIBOR-Based Fin. Instruments Antitrust Litig., 299 F. Supp. 3d 430, 496 
(S.D.N.Y. 2018) (“time-value damages” not subject to “formulaic calculation” be-
cause putative class members do not “all share[] the same time-value of money”). 
2. Plaintiffs have no valid classwide measure of “customer service” harm. 
Regan proposes to calculate “actual damages” for the Customer Service puta-
tive class by multiplying alleged “average excess” times cardholders spent on hold 
by “the applicable minimum wage—or other reasonable metric—to calculate the to-
tal value of class members’ lost time.” PX 4 ¶ 114. This is defective on multiple 
levels. As a threshold matter, the Court is not required to ignore the fact that this is a 
legally invalid and utterly unprecedented damages theory that cannot be the basis for 
any recovery. See, e.g., Kleef v. Goodman Mfg. Co., L.P., 2015 WL 4512200, at *3 
(E.D. Ark. July 24, 2015) (rejecting plaintiff’s “contention that he should be 
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compensated for the time lost in coordinating and waiting for repairs” because oth-
erwise “consumers could bring a lawsuit every time they were on hold with a com-
pany’s customer service line while they waited to resolve a problem”); In re Hanna-
ford Bros. Co. Cust. Data Sec. Breach Litig., 4 A.3d 492, ¶¶ 1, 11 (Me. 2010) (“time 
and effort to identify and remediate fraudulent charges on their credit and debit card 
accounts” is not a compensable harm). Even setting that aside, though, it is not a 
figure Plaintiffs can establish with common evidence. 
First, it relies on more impermissible averaging in lieu of the requisite individ-
ual evidence, because Plaintiffs have no data on the amount of time any individual 
spent on hold. Second, Plaintiffs have no valid basis for labeling even this average as 
excessive. Their purported expert opines that a reasonable hold time is a mere minute 
and twenty five seconds. See PX 3 ¶ 46. He derives this from a 2020 survey of call 
centers across myriad different industries. See id. ¶ 64. Importantly, financial services 
accounted for only 14% of the call centers included, with the rest including retail, 
manufacturing, and—significantly—the travel industry. As industry expert Steve 
Hindle points out in response, “what is considered a good call and reasonable [Speed 
to Answer] depends on the industry,” “especially in 2020 after outbreak of the global 
pandemic,” and the same factors that led to a spike in call volume to BANA led to a 
precipitous decline in call volume to the travel industry as people stopped traveling. 
DX 5 ¶ 23. Assessing the reasonability of BANA’s handling of a historically high 
call volume against baselines derived from historically low call volumes is not valid. 
That baseline is not the only essential factor in the equation that is either 
groundless or undefined. Regan says the “average excess” time will be multiplied by 
the “applicable minimum wage—or other reasonable metric.” PX 4 ¶ 114. So maybe 
it will be the minimum wage, maybe something else. Regan leaves it unstated. In 
neither case does Regan offer any basis for concluding that it represents the actual 
value of “lost time” to any individual. Of course, it does not. See DX 1 ¶¶ 97–105. 
More fundamentally, there is a fatal disconnect between the damages 
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methodology and Plaintiffs’ theory of liability. Regan proposes to measure damages 
based on hold times just because Plaintiffs happen to have data on hold times. But 
the alleged customer-service grievances aren’t based simply on hold times; they al-
lege failures to “address . . . concerns about fraudulent or unauthorized transactions” 
(ECF 304 ¶ 586) and related grievances. “[A] model purporting to serve as evidence 
of damages in [a] class action must measure only those damages attributable to th[e 
plaintiffs’] theory” of liability. Comcast, 569 U.S. at 35. Regan’s model does not. 
3. Plaintiffs have no valid classwide measure of “EMV chip” harm. 
Finally, Regan’s purported measure of “actual damages” for the EMV Chip 
putative class recycles his claimed “actual damages” for the putative Claim Denial 
and Credit Rescission classes. Regan simply assumes EMV chips “would have pre-
vented” every “unauthorized ATM withdrawal[]” that was “the subject of Claim De-
nial and Credit Rescission class members’ claims,” and says the “actual damages” 
are the full amount not only of the unauthorized ATM withdrawals but of every other 
transaction the cardholder disputed at the same time, including “point-of-sale trans-
action[s].” PX 4 ¶¶ 118–20. Both the premise (that EMV chips would have prevented 
every such transaction) and the conclusion (that the actual damages are the full 
amount of every disputed claim) are false, which makes the damages methodology 
incapable of carrying Plaintiffs’ burden. We have already seen a variety of reasons 
why EMV chips would not have prevented every transaction at issue. See supra Part 
I.B.2. Since Plaintiffs cannot prove these transactions were all caused by cards’ lack-
ing chips, it follows they cannot base their damages on those transactions. Regan’s 
conclusion that the damages for lacking the chips equal the full amount of every dis-
puted claim is also unsustainable to the extent class members have already been paid 
back on those claims, and so lack the alleged damages altogether. 
III. The “best” Plaintiffs cannot be typical or adequate class representatives. 
Rule 23 requires the class representatives’ claims to be “typical of the claims 
or defenses of the class.” FED. R. CIV. P. 23(a)(3). This requirement “tend[s] to 
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merge” with commonality because “the considerations underlying the two require-
ments overlap considerably.” A.B. v. Hawaii State Dep’t of Educ., 30 F.4th 828, 839 
(9th Cir. 2022) (quoting Falcon, 457 U.S. at 157 n.13). It also “tend[s] to significantly 
overlap” with Rule 23(a)(4) adequacy and become “a single inquiry.” James v. Uber 
Techs. Inc., 338 F.R.D. 123, 133 (N.D. Cal. 2021).  
This MDL has included hundreds of Plaintiffs, and dozens proposed as class 
representatives at one point or another. We have already seen Plaintiffs and putative 
class members subject to defenses they do not share with the nine surviving Plaintiffs 
now anointed as proposed class representatives. See supra Background, F. This was 
by design—in trying to reduce the class representatives to those with the “best” facts, 
Plaintiffs were obviously not going to proffer anyone who was likely defrauding 
BANA and the State or otherwise had an unattractive set of facts. But their putative 
class still contains many people whose factual record is far from the “best,” and better 
resembles those whose claims were dismissed, withdrawn, or pushed aside by the 
lawyers. “The test of typicality is whether other members have the same or similar 
injury,” Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992), and class 
representatives cherry-picked as the best examples of their alleged injuries obviously 
can’t be typical of putative class members with no injury. See, e.g., In re Digital 
Music Antitrust Litig., 321 F.R.D. 64, 88 (S.D.N.Y. 2017) (“[C]lass certification is 
inappropriate not only where Proposed Class Representatives are subject to unique 
defenses, . . . but also proposed class members.”).  
The Digital Music case is closely analogous to what Plaintiffs are pressing 
here. The plaintiffs there sought to certify a class of digital music purchasers who 
allegedly overpaid for downloaded songs, but the proposed class was tainted by 
“large numbers of [] proposed class members [who] engaged in illegal downloading” 
and were therefore subject to an unclean-hands defense. See id. After the plaintiffs 
“dedicated years of th[e] litigation to adding and withdrawing Proposed Class Rep-
resentatives in order to find individuals who can both provide proof of music 
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download purchases during the class period and did not engage in illegal download-
ing,” the Court ruled that the class representatives “failed to satisfy the typicality 
requirement” because “the focus of the litigation” would be on the defenses not ap-
plicable to the “cherry-picked” class-representatives. Id. at 87–89. So too here. 
This cherry-picking is not Plaintiffs’ only typicality problem. The selected few 
putative class representatives also suffer from being “subject to unique defenses.” 
Ellis v. Costco Wholesale Corp., 657 F.3d 970, 984 (9th Cir. 2011). The flaws in 
Plaintiffs’ damages methodology addressed supra Part III.B are not merely hypothet-
ical but actual defenses to putative class representatives’ individual claims. For ex-
ample, 
 
 More 
broadly, Plaintiffs seek to recover damages based on the cost of having to borrow 
substitute funds to cover expenses while waiting for account credits—but seven of 
the nine class representatives (
) incurred no such costs. They 
will, presumably, go before the Court relying on Regan’s report to say they get dam-
ages based on the average cost of credit, and BANA will respond that their actual 
cost-of-credit damages are zero, not a statistical average. “[A]bsent class members 
will suffer” if their wagons are hitched to class representatives who “would not be 
entitled to damages.” Williams v. Warner Music Grp., 858 F.3d 385, 385–86 (9th Cir. 
2021). 
IV. A class action is not superior to a comprehensive regulatory remediation. 
The requirement that a class action be “superior to other available methods for 
fairly and efficiently adjudicating the controversy” is seldom decisive all by itself. 
FED. R. CIV. P. 23(b)(3). This case presents an unusual exception. Everybody Plain-
tiffs seek to represent has already been fully compensated (and in many cases, more 
than fully compensated) or slated for it. That is fatal. See, e.g., Webb v. Carter’s Inc., 
272 F.R.D. 489, 504–05 (C.D. Cal. 2011) (“a class action is not superior because 
[defendant] is already offering the very relief that Plaintiffs seek,” “without requiring 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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any documentation”); In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 214 
F.R.D. 614, 622 (W.D. Wash. 2003) (“It makes little sense to certify a class where a 
class mechanism is unnecessary to afford the class members redress.”). 
By Plaintiffs’ own admission, the point of litigating their claims by class action 
is to get the treble damages “the CFPB is not statutorily authorized to obtain.” Mot. 
at 15. This is not a legitimate basis for certifying a class. The Ninth Circuit in Kamm 
set forth a variety of factors bearing on whether class-action litigation is superior to 
“administrative methods” of settling the dispute, and a key factor is whether “[s]ig-
nificant relief had [already] been realized” in a regulatory matter. 509 F.2d at 211–
12; accord, e.g., Conde v. Sensa, 2018 WL 4297056, at *15–16 (S.D. Cal. Sept. 10, 
2018) (using “Kamm factors” to determine that superiority was lacking in light of 
prior FTC settlement that already provided “significant relief”). Seeking a follow-on 
class action just to exploit a treble-damages provision is not even a close case under 
Kamm. The test is whether relief already realized is “significant,” not whether Plain-
tiffs have scrounged up every last penny. Accordingly, Conde found superiority lack-
ing notwithstanding the plaintiff’s protestations that “the FTC settlement did not pro-
vide as much money as Plaintiff and the class members seek.” Id. 
Kamm also requires inquiries into whether the “class action would require sub-
stantial expenditure of judicial time which would largely duplicate and possibly to 
some extent negate the work” already done in the regulatory matter and whether a 
class action “would prove costly to defendants and duplicate in part the work ex-
tended over a considerable period of time in the [regulatory] action.” 509 F.2d at 212. 
Insofar as Plaintiffs seek to retread the same ground here, a class trial would be fatally 
duplicative. Insofar as the individualized issues threaten to produce different out-
comes (as, of course, they do), it is fatally “costly” and threatens not just to duplicate 
but to “negate” the work done in the regulatory matter. Id. 
CONCLUSION 
Plaintiffs do not satisfy Rule 23, and their motion should be denied. 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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Dated: October 24, 2024 
Respectfully submitted, 
 
By: s/ James W. McGarry_________ 
 
JAMES W. MCGARRY (pro hac vice) 
JMcGarry@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
THOMAS M. HEFFERON (pro hac vice) 
THefferon@goodwinlaw.com 
SABRINA M. ROSE-SMITH (pro hac 
vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N St. NW  
Washington, DC 20036  
Tel: +1 202 346 4000  
Fax: +1 202 346 4444 
LAURA G. BRYS (SBN 242100) 
LBrys@goodwinlaw.com 
GOODWIN PROCTER LLP 
601 S Figueroa St., Suite 4100 
Los Angeles, CA 90017 
Tel.: +1 213 426 2500 
Fax: +1 617 346 4444 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
JONES DAY 
100 High Street 
Boston, MA 02110 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
JANICE P. BROWN (SBN 114433) 
jbrown@myersnave.com 
MATTHEW B. NAZARETH (SBN 
278405) 
mnazareth@myersnave.com 
MEYERS NAVE 
600 B Street, Suite 1650 
San Diego, CA 92101 
Attorneys for Defendant 
BANK OF AMERICA, N.A. 
 
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OPP. TO PLS.’ MOT. FOR CLASS CERT. 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on October 24, 2024. I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system. I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
 
Executed: 
October 24, 2024 
 
s/ James W. McGarry 
 
 
 
 
 
 
 
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