Court filing
Exhibit 2 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 454-3, S.D. Cal. No. 3:21-md-02992)
Filed April 11, 2025 in In re Bank of America California Unemployment Benefits Litigation; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2025-04-11 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 454-3 · 2025-04-11 · Docket on CourtListener
Full text
EXHIBIT 2 FILED PROVISIONALLY UNDER SEAL WITH REDACTIONS PURSUANT TO STIPULATED PROTECTIVE ORDER Case 3:21-md-02992-GPC-MSB Document 454-3 Filed 04/11/25 PageID.26481 Page 1 of 5 SAN FRANCISCO LOS ANGELES SEATTLE NEW YORK LAW OFFICES COTCHETT, PITRE & McCARTHY, LLP SAN FRANCISCO AIRPORT OFFICE CENTER 840 MALCOLM ROAD BURLINGAME, CALIFORNIA 94010 TELEPHONE (650) 697-6000 FAX (650) 697-0577 cpmlegal.com December 16, 2024 Sent via email to: Hon. Michael S. Berg efile_berg@casd.uscourts.gov Re: Zoom Discovery Conference on Dec. 23, 2024, 9:00 a.m. –In re Bank of America California Unemployment Benefits Litig., No. 3:21-md-02992-GPC-MSB (S.D. Cal.) Dear Judge Berg: Plaintiffs submit this letter brief regarding the Bank’s refusal to produce for deposition its CEO Brian T. Moynihan (“BTM”) and former COO Thomas Montag, based on the apex doctrine. The objection lacks merit. As Judge Curiel already ruled in compelling the Bank’s production of Moynihan and Montag’s documents, both witnesses possess unique knowledge that is central to Plaintiffs’ claims, including for punitive damages. Dkt. No. 298 at 11. Plaintiffs have at this point at the close of fact discovery adequately exhausted other avenues of inquiry, including interrogatories and the testimony of multiple 30(b)(6) and other Bank witnesses. No other Bank witnesses were party to discussions between Moynihan and Montag or between Moynihan and the Board of Directors about the Bank’s decisions to implement and continue to use the Claim Fraud Filter (CFF) that harmed over class members. The evidence shows that these decisions were driven and ultimately made by Moynihan, who uniquely reported to the Board on , and by Montag, who ran the Global Banking and Markets (“GBAM”) group that “owned” the UI card program, directed development of the CFF . That the apex doctrine cannot bar these depositions is made clear by Judge Curiel’s findings in ruling on Plaintiffs’ prior motion to compel ESI custodians, in which the Bank relied on an argument based on the apex doctrine to resist document discovery from these witnesses. In rejecting that argument, the Court found: The FAMCC seeks punitive damages. (Dkt. No. 136, FAMCC, Prayer ¶¶ 3-4.) . . . At trial, Plaintiffs will need evidence of motive, intent, or knowledge and ratification by an officer, director or managing agent to support an award of punitive damages. . . . [I]mportant for punitive damages is what Moynihan and Montag ‘knew about the CFF, its impact on legitimate EDD cardholders, when they knew it, what action they directed, authorized, or ratified, and why.’ (Dkt. No. 278-1 at 15-16). The Court agrees with Plaintiffs that ESI from Moynihan and Montag concerning punitive damages can only be obtained by them, and not from sources already designated. Dkt. No. 298 at 11 (emphasis added); In re Bank of America California Unemployment Benefits Litigation, 2024 WL 3174874, at *6 (S.D. Cal. June 25, 2024) (emphasis added). Accordingly, the Case 3:21-md-02992-GPC-MSB Document 454-3 Filed 04/11/25 PageID.26482 Page 2 of 5 LAW OFFICES In re BofA Unemployment Benefits Litigation COTCHETT, PITRE & McCARTHY, LLP December 16, 2024 Page 2 Court found that Plaintiffs had demonstrated “that Moynihan and Montag possess ‘uniquely relevant information that is not available from the sources already designated’ as it concerned punitive damages.” Id. (emphasis added). The Court’s reasoning applies equally to the noticed depositions. Based on their specific roles vis a vis the CFF Policy, both witnesses have unique “evidence of motive, intent, or knowledge and ratification by an officer, director or managing agent to support an award of punitive damages.” Id. The evidence shows that the (Exs. 1-3). Information regarding what was communicated between Moynihan and the Board, separate and distinct from , cannot reasonably be obtained from any other source. Moynihan’s testimony will show what he and the Board knew when they allowed the Bank to implement and continue to use the CFF despite the consequences. This information is central to many of Plaintiffs’ claims relating to issues of willfulness, knowledge, intent, notice and, as recognized in Judge Curiel’s prior Order, punitive damages. Courts routinely compel the deposition of CEOs and other high-level executives where, as here, there is evidence they attended key meetings, were members of decision-making committees, or otherwise had percipient knowledge of relevant issues. See In re Nat’l W. Life Ins. Deferred Annuities Litig., No. 05-CV-1018-AJB (WVG), 2011 WL 1304587, at *1 (S.D. Cal. Apr. 6, 2011) (ordering deposition of CEO and COO because “when a witness has personal knowledge of facts relevant to the lawsuit, even a corporate president or CEO is subject to deposition”); Moyle v. Liberty Mut. Ret. Bene. Plan, No. 10-cv-2179-DMS (MDD), 2012 WL 5373421, at *4 (S.D. Cal. Oct. 30, 2012) (ordering deposition of executive on committee that approved plan at issue: “Even when seeking the deposition of an apex official, it is very unusual for a court to prohibit the taking of a deposition altogether absent extraordinary circumstances.”) (citing Apple Inc. v. Samsung Elecs. Co., Ltd, 282 F.R.D. 259, 263 (N.D. Cal. 2012)) (cleaned up).1 Moynihan’s central role in driving the CFF Policies is evidenced by scores of documents, including (Exs. 1-3), (Exs. 4-21), (Exs. 22-41), and communications by the media and legislators (Ex. 42). In addition to , just a few illustrative examples include (Ex. 7); (Ex. 10); (Ex. 11); 1 See also Perez v. Genoptix, Inc., No. 18-cv-2545-LAB-MDD, 2019 WL 12517081, at *2 (S.D. Cal. Jan. 11, 2019) (allowing deposition of board chairman where email suggested chairman “may have unique, personal knowledge” of material issues); In re Transpacific Passenger Air Transp. Antitrust Litig., No. C-07-5634 CRB (DMR), 2014 WL 939287, at *1, 3 (N.D. Cal. Mar. 6, 2014) (compelling deposition of CEO who attended key meetings); Powertech Tech., Inc. v. Tessera, Inc., No. C 11-6121 CW, 2013 WL 3884254, at *2 (N.D. Cal. July 26, 2013) (compelling deposition where board “considered and voted on matters relevant to this case”). Case 3:21-md-02992-GPC-MSB Document 454-3 Filed 04/11/25 PageID.26483 Page 3 of 5 Case 3:21-md-02992-GPC-MSB Document 454-3 Filed 04/11/25 PageID.26484 Page 4 of 5 LAW OFFICES In re BofA Unemployment Benefits Litigation COTCHETT, PITRE & McCARTHY, LLP December 16, 2024 Page 4 Respectfully submitted, /s/ Brian Danitz Counsel for Class Plaintiffs cc: All Counsel Case 3:21-md-02992-GPC-MSB Document 454-3 Filed 04/11/25 PageID.26485 Page 5 of 5
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