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Ex Parte MOTION for Leave to File Surreply to Defendant's Motion for a Protective… — Bofa Ca Unemployment (Dkt. 479)

No. 3:21-md-02992-GPC-MSB · Doc. 479 · Docket on CourtListener

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Case 3:21-md-02992-GPC-MSB Document 479 Filed 05/07/25 PageID.28864 Page
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1 JOSEPH W. COTCHETT (SBN 36324) MICHAEL RUBIN (SBN 80618)
jcotchett@cpmlegal.com mrubin@altber.com
2 BRIAN DANITZ (SBN 247403) STACEY M. LEYTON (SBN 203827)
3 bdanitz@cpmlegal.com sleyton@altber.com
KARIN B. SWOPE (Pro Hac Vice) CONNIE K. CHAN (SBN 284230)
4 kswope@cpmlegal.com cchan@altber.com
5 VASTI S. MONTIEL (SBN 346409) COLIN C. JONES (SBN 354301)
vmontiel@cpmlegal.com cjones@altber.com
6 CAROLINE A. YUEN (SBN 354388) CAROLINE HUNSICKER (SBN 356917)
7 cyuen@cpmlegal.com chunsicker@altber.com
COTCHETT, PITRE & McCARTHY, LLP ALTSHULER BERZON LLP
8 840 Malcolm Road, Suite 200 177 Post Street, Suite 300
9 Burlingame, CA 94010 San Francisco, CA 94108
Telephone: (650) 697-6000 Telephone: (415) 421-7151
10 Fax: (650) 697-0577 Fax: (415) 362-8064
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Co-Lead Counsel for Plaintiffs and the Proposed Class
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13 UNITED STATES DISTRICT COURT
14 SOUTHERN DISTRICT OF CALIFORNIA
15
IN RE BANK OF AMERICA Case No. 3:21-md-02992-GPC-MSB
16 CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION PLAINTIFFS’ EX PARTE MOTION
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FOR LEAVE TO FILE SURREPLY TO
18 DEFENDANT’S MOTION FOR A
PROTECTIVE ORDER, AND
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PROPOSED SURREPLY
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21 Judge: Hon. Gonzalo P. Curiel
This Document Relates to All Actions Ctrm: 2D (2nd Floor)
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26 REDACTED PUBLIC VERSION
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Pls.’ Ex Parte Motion for Leave to File Surreply to Def’s Motion for Protective Order; Case
No. 3:21-md-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 479 Filed 05/07/25 PageID.28865 Page
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1 I. MOTION FOR LEAVE
2 Plaintiffs respectfully move for leave to file this short surreply brief in opposition to
3 Defendant Bank of America, N.A.’s (the “Bank”) Motion for Protective Order, for the sole
4 purpose of responding to new evidence and argument submitted by the Bank for the first
5 time in its Reply, see Hoyle Reply Decl. Exs. 18-21, and specifically to clarify for the Court
6 a key factual issue that the Bank’s Reply distorts regarding approval of the Claim Fraud
7 Filter. Courts often grant leave to file a surreply for good cause shown where, as here, the
8 party seeks to address evidence or argument raised “for the first time in [a] reply brief.”
9 See Int’l Gamco, Inc. v. Multimedia Games, Inc., 732 F.Supp.2d 1082, 1099 n.20 (S.D.
10 Cal. 2010); Cash v. AMCO Ins. Co., 2018 WL 3434885, at *2 (S.D. Cal. July 17, 2018);
11 Ruiz v. XPO Last Mile, Inc., 2017 WL 1421996, at *3 (S.D. Cal. Apr. 20, 2017).
12 II. PROPOSED SURREPLY
13 Plaintiffs’ Opposition explains why, as a matter of logical inference, it must have
14 been either CEO Brian Moynihan or former COO Thomas Montag, acting at Moynihan’s
15 direction, who gave Faiz Ahmad the actual “ ” i.e. “
16 ” just shortly before 6:07 p.m. on September 28, 2020. See Opp’n at 7 (citing
17 Danitz Decl. Exs. 5, 14, 60, 51).
18 In its recent reply brief, the Bank attempts to block the noticed depositions of
19 Moynihan and Montag by asserting for the first time in this years-long litigation that “the
20 evidence shows” it was actually Cathy Bessant, the Bank’s then-Global Head of
21 Technology and Operations who reported to Brian Moynihan, who gave the “
22 ” for the Bank’s use of the automated Claim Fraud Filter to deny claims, rescind
23 credits, and freeze accounts “
24 .” Hoyle Decl. Ex. 15 (Ramirez Tr. 4:7-13); Reply at 1,
25 3.1 The Bank now claims that its eleventh-hour reveal “wholly refutes the speculation that
26 Mr. Moynihan ‘ .” Id. at 3.
27 1
The Bank does not actually state that Bessant was the final decisionmaker, only that the
28 “evidence shows” she was. Reply at 1. Notably, the Bank did not disclose Bessant in
response to Plaintiffs’ interrogatory asking the Bank to “
Pls.’ Ex Parte Motion for Leave to File Surreply to Def’s Mtn for Protective Order; 1
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1 The Bank’s citations to the record prove nothing of the sort—in fact, just the
2 opposite. The Bank points to an email Bessant sent Faiz Ahmad on September 27, 2020 at
3 9:38 p.m. stating that she had “
4 ” Id. (quoting Hoyle Reply Decl. Ex. 18). But if Bessant’s September 27 e-mail
5 actually provided the necessary final approval to implement the Claim Fraud Filter, the
6 Bank’s employees would not have still been “ ”
7 and “ ” on September 28. Danitz Decl.
8 Ex. 52 (Ehresman Tr. 78:3-79:23).2 Nor would the Bank’s employees have been asking at
9 7:33 p.m. on September 28, “
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11 ” if Bessant had given the final approval the previous evening. Danitz Decl. Ex. 14.
12 And Ahmad would not have emailed Bill Fox and Paul Simpson at 6:07 p.m. on September
13 28, reporting, “ ” if that had been provided a full day earlier.
14 Danitz Decl. Ex. 60 (emphasis added); see id. Ex. 51 (Fox Tr.) 65:6-66:13 (explaining that,
15 when Ahmad said that meant
16 . Similarly, Bill Fox would not have
17 responded, “ ” if Bessant had given the necessary approval
18 the day before. Danitz Decl. Ex. 60.
19 The Bank’s seemingly dramatic disclosure raises more questions than it answers—
20 questions that only Moynihan or Montag can answer—and it does nothing to undermine
21 the likelihood that it must have been the more senior Moynihan (or Montag, acting at
22 Moynihan’s direction) who gave the “ ” or “ ” to begin actually
23 implementing the Claim Fraud Filter on September 28. Indeed, the fact that Ahmad felt the
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” ECF 211 Ex. 18
26 (Responses to Rog 11) at 16-17, and the Bank later refused to produce any of Bessant’s
27 custodial documents, forcing Plaintiffs to move to compel them. ECF 212.
2
The underlying Bank document about which Ehresman is testifying (Ehresman Dep. Ex.
28 372, BANA_EDD_MDL-00426935) shows that this chat exchange occurred at 12:37
p.m. and 1:52 p.m. on September 28.
Pls.’ Ex Parte Motion for Leave to File Surreply to Def’s Mtn for Protective Order; 2
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1 need to obtain Bessant’s preliminary approval before seeking final approval from an even
2 higher-ranking officer on September 28 only strengthens the probability that it was the
3 CEO himself who unilaterally authorized the freezing of “
4 .” Danitz Decl. Ex. 14. Plaintiffs should be allowed to depose
5 Moynihan and Montag to determine once and for all what they knew about the Claim Fraud
6 Filter and the impacts it would have on legitimate cardholders, and whether they approved
7 the use of the Claim Fraud Filter to summarily deny claims without investigation, rescind
8 permanent credits, and freeze the accounts of tens of thousands of EDD UI beneficiaries.
9 Respectfully submitted,
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Dated: May 7, 2025 COTCHETT, PITRE & McCARTHY, LLP
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By: /s/ Brian Danitz
12 JOSEPH W. COTCHETT
BRIAN DANITZ
13 KARIN B. SWOPE
DAVID G. HOLLENBERG
14 BLAIR V. KITTLE
VASTI S. MONTIEL
15 CAROLINE A. YUEN
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17 Dated: May 7, 2025 ALTSHULER BERZON LLP
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By: /s/ Michael Rubin
19 MICHAEL RUBIN
STACEY M. LEYTON
20 CONNIE K. CHAN
COLIN C. JONES
21 CAROLINE HUNSICKER

22 Co-Lead Counsel for Plaintiffs and the
Proposed Class
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Pls.’ Ex Parte Motion for Leave to File Surreply to Def’s Mtn for Protective Order; 3
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1 SIGNATURE ATTESTATION
2 Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and
3 Procedures Manual, I, Michael Rubin, attest that the other signatories listed, and on whose
4 behalf this filing is submitted, concur in the filing content and have authorized this filing.
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6 Dated: May 7, 2025 /s/ Michael Rubin
7 Michael Rubin

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Pls.’ Ex Parte Motion for Leave to File Surreply to Def’s Mtn for Protective Order; 4
Case No. 3:21-md-02992-GPC-MSB

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