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Home Court filings In re: Bank of America California Unemployment Benefits Litigation — S.D. Cal., No. 21-md-02992 Defendant's Motion to File Documents Under Seal in Support of Its Motion to Reconsider May 29, 2025 Order

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Defendant's Motion to File Documents Under Seal in Support of Its Motion to Reconsider May 29, 2025 Order

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Defendant's Motion to File Documents Under Seal in Support of Its Motion to Reconsider May 29, 2025 Order Granting in Part and Denying in Part Defendant's Motion for Protective Order, filed 06/26/25 as Document 501 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB in the Southern District of California. Under Local Civil Rule 79.2(c), Bank of America, N.A. asks to seal references in its reconsideration motion to exhibits already sealed in the protective order briefing, which concerned apex depositions of high-level executives. It says the Court largely granted prior sealing motions on its fraud detection and prevention policies, call center operations, prepaid fraud losses and cardholder complaints, and that disclosure could enable future fraud.

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“Defendant's Motion to File Documents Under Seal in Support of Its Motion to Reconsider May 29, 2025 Order.” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 501. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-06-26-gov-uscourts-casd-709615-501-0-gov-uscourts-casd-709615-501-0/, SHA-256 7f85a72103bab445a5bdbf3e6f9b2c383869173b6ceb8b9550d3919aa694bb2c.

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Case 3:21-md-02992-GPC-MSB     Document 501   Filed 06/26/25   PageID.29274   Page
                                     1 of 8


   1   JAMES W. MCGARRY (pro hac vice)
       JMcGarry@goodwinlaw.com
   2   GOODWIN PROCTER LLP
       100 Northern Avenue
   3   Boston, MA 02210
       Tel.: +1 617 570 1000
   4   Fax: +1 617 523 1231
   5   SABRINA M. ROSE-SMITH (pro hac vice)
       SRoseSmith@goodwinlaw.com
   6   MATTHEW L. RIFFEE (pro hac vice)
       MRiffee@goodwinlaw.com
   7   GOODWIN PROCTER LLP
       1900 N Street, NW
   8   Washington, DC 20036
       Tel.: +1 202 346 4000
   9   Fax: +1 202 346 4444
  10   Attorneys for Defendant
       BANK OF AMERICA, N.A.
  11

  12   [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]

  13                      UNITED STATES DISTRICT COURT
  14                    SOUTHERN DISTRICT OF CALIFORNIA
  15                                SAN DIEGO DIVISION
  16   IN RE: BANK OF AMERICA                  Case No. 21-MD-02992-GPC-MSB
       CALIFORNIA UNEMPLOYMENT
  17   BENEFITS LITIGATION                     DEFENDANT’S MOTION TO
  18
                                               FILE DOCUMENTS UNDER
                                               SEAL IN SUPPORT OF ITS
  19                                           MOTION TO RECONSIDER MAY
                                               29, 2025 ORDER GRANTING IN
  20                                           PART AND DENYING IN PART
                                               DEFENDANT’S MOTION FOR
  21                                           PROTECTIVE ORDER
  22

  23                                           Ctrm:       2D – 2nd Floor
                                               Judge:      Hon. Gonzalo P. Curiel
  24

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       DEFENDANT’S MOTION TO SEAL                       CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 501       Filed 06/26/25   PageID.29275    Page
                                       2 of 8


   1         PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
   2   Defendant Bank of America, N.A. (“Defendant” or “BANA”) hereby submits this
   3   Motion to File Documents Under Seal (the “Motion”) in connection with Defendant’s
   4   Motion to Reconsider the Court’s May 29, 2025 Order Granting in Part and Denying
   5   in Part Defendant’s Motion for Protective Order (“Motion to Reconsider”).
   6   Consistent with the Court’s prior sealing orders finding good cause to seal certain
   7   exhibits filed with BANA’s Motion for Protective Order (ECF 453, 466), Plaintiffs’
   8   Opposition to Defendant’s Motion for Protective Order (“Plaintiffs’ Opposition”)
   9   (ECF 465, 467), and BANA’s Reply in Support of Motion for Protective Order
  10   (“Reply”) (ECF 472, 477), BANA seeks to seal references within its Motion to
  11   Reconsider relating to the contents of those already-filed and sealed exhibits.1
  12         As previously stated in BANA’s motions to seal submitted in connection with
  13   class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418) and
  14   protective order briefing and argument (ECF 451, 463, 470), the public’s right to
  15   inspect and copy judicial records is not absolute, and a party faced with the disclosure
  16   of confidential or proprietary information may seek to file the documents under seal
  17   to avoid disclosure of business information that might result in competitive harm or
  18   be used for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
  19   598 (1978)) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal
  20   documents filed in connection with a discovery dispute must show “good cause” to
  21   seal documents. Courts in this district have held that the good cause standard applies
  22   even where the underlying dispute concerns so-called “apex” depositions of high-
  23   level executives, as is the case here. See, e.g., BAE Sys. San Diego Ship Repair Inc.
  24   v. United States, 670 F. Supp. 3d 1064, 1069 (S.D. Cal. 2023) (hereinafter “BAE
  25
       1
         BANA incorporates by reference its Motion to File Documents Under Seal (ECF
  26   451) in connection with its Motion for a Protective Order (ECF 453), Plaintiffs’
       Motion to File Documents Under Seal (ECF 463) in connection with Plaintiffs’
  27   Opposition to Defendant’s Motion for Protective Order (ECF 465), and BANA’s
       Motion to File Documents Under Seal (ECF 470) in connection with its Reply in
  28   Support of Motion for Protective Order (ECF 472).
                                                1
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 501       Filed 06/26/25   PageID.29276   Page
                                       3 of 8


   1   Systems”) (finding “good cause” to seal exhibits filed with motion for protective
   2   order).
   3         Courts consistently seal documents where—as here—disclosure of the
   4   confidential business information risks competitive harm to the litigant or improper
   5   use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
   6   WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
   7   seal confidential onboarding processes, verification of customer identities, and fraud
   8   prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
   9   Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
  10   procedures because there was a “significant danger that someone could improperly
  11   use this information to commit fraud and avoid detection.”). Indeed, this Court
  12   largely granted the Parties’ prior motions to seal, finding good cause or compelling
  13   reasons to seal documents concerning the same topics that BANA now seeks to seal,
  14   including BANA’s fraud detection and prevention policies and strategies (including
  15   the fraud filter), call center operations, prepaid fraud losses, state contract issues,
  16   cardholder complaints and escalations, and certain of BANA’s interrogatory
  17   responses. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 477, 498 (the
  18   “Sealing Orders”).
  19         Consistent with this Court’s Sealing Orders, there is good cause to seal the
  20   confidential documents and testimony at issue here (or references thereto), as well as
  21   substantive discussions of already sealed exhibits filed in connection with BANA’s
  22   Motion for Protective Order, Plaintiffs’ Opposition, or BANA’s Reply, because each
  23   reflect topics that are likely to cause particularized competitive harm to BANA and
  24   which could potentially enable future fraud, and thus pose a danger to BANA’s
  25   business and the public. See, e.g., EWB, 2021 WL 3112452, at *18–19 (finding
  26   compelling reasons to seal where public disclosure of EWB’s confidential
  27   onboarding processes, verification of customer identities and fraud prevention
  28   measures would “harm [the bank’s] competitive standing”); Soria, 2019 WL
                                                2
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 501       Filed 06/26/25    PageID.29277   Page
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   1   8167925, at *4 (finding compelling reasons to seal bank’s internal procedures for
   2   investigating fraud because there was a “significant danger that someone could
   3   improperly use this information to commit fraud and avoid detection”). Each
   4   document was also properly designated as “Confidential” or “Highly Confidential –
   5   Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
   6   Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
   7   connection with an apex discovery dispute because “information in the exhibits fits
   8   within ‘confidential information’ in the protective order”).
   9         Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
  10   documents and testimony that BANA seeks to seal, include but are not limited to, the
  11   following categories of documents and information:
  12             Portions of the Motion to Reconsider reflect discussions of confidential
  13                BANA fraud prevention strategies and policies that could be misused
  14                by fraudsters to perpetrate future fraud or could be used by another
  15                financial institution to BANA’s competitive disadvantage. See ECF 365
  16                at 5–6, 12; ECF 466 at 1; ECF 467 at 1; ECF 477 at 1; Robart Decl.
  17                (ECF 347-2) ¶¶ 3–5; Martin Decl. (ECF 347-1) ¶¶ 4–6; see also Cowan
  18                v. GE Cap. Retail Bank, 2015 WL 1324848, at *2–3 (N.D. Cal. Mar. 24,
  19                2015) (compelling reasons exist to seal bank’s internal procedures for
  20                investigating fraud and addressing cardholder fraud notifications);
  21             Portions of the Motion to Reconsider show how BANA structures the
  22                group responsible for fraud detection and monitoring strategies, among
  23                other banking responsibilities. See ECF 365 at 13-14; ECF 466 at 1;
  24                ECF 467 at 1; ECF 477 at 1; Robart Decl. (ECF 344-2) ¶ 5; Dkt. No.
  25                344-1, Martin Decl. ¶ 9; see also EWB, 2021 WL 3112452, at *18-19
  26                (sealing confidential onboarding processes, digital banking platform,
  27                fraud management techniques, and verification of customer identities);
  28                and
                                                3
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 501        Filed 06/26/25   PageID.29278   Page
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   1              Portions of the Motion to Reconsider reflect BANA’s confidential
   2                discussions or analyses of its state prepaid unemployment program
   3                operations, including but not limited to, fraud volume, claims and call
   4                center operations, operational risks and losses, and approval of fraud
   5                strategies. See ECF 365 at 10–13, n. 14; ECF 466 at 1; ECF 467 at 1;
   6                ECF 477 at 1; Martin Decl. (ECF 344-1) ¶¶ 5, 7–10; Martin Decl. (ECF
   7                347-1) ¶¶ 10–12; Robart Decl. (ECF 344-2) ¶ 4; see Brady v. Grendene
   8                USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel)
   9                (sealing confidential business information that might harm the litigants’
  10                competitive standing including profit and loss data and contractual
  11                agreements).
  12         BANA has also provisionally redacted and sealed portions of the Motion to
  13   Reconsider that quote or describe the confidential topics identified above, or those
  14   previously submitted or described in the Parties’ prior briefing and motions to seal
  15   submitted in connection with BANA’s Motion for Protective Order (ECF 451, 453,
  16   463, 465, 470, 472). Those confidential topics include BANA’s fraud analyses and
  17   strategies and BANA’s analyses of its state prepaid unemployment program
  18   operations, including contractual negotiations, fraud volume, claims and call center
  19   operations, and operational risks and losses, among other topics. See supra at 3-4.
  20   This is consistent with the terms of the Stipulated Protective Order (ECF 82, § 3),
  21   with this Court’s prior Sealing Orders (ECF 365, 381, 390, 466, 467, 477, 498), and
  22   with rulings in this Circuit. See, e.g., Darisse v. Nest Labs, Inc., 2016 WL 11474174,
  23   at *2 (N.D. Cal. June 2, 2016) (sealing class certification motion and declarations
  24   that quote or reference confidential exhibits). For the reasons discussed above, there
  25   is good cause to seal discussions of those topics, testimony and documents discussed
  26   in the Parties’ briefing. See supra at 1-4.
  27                                       *         *    *
  28         For the foregoing reasons and for the reasons set forth in the Court’s Sealing
                                                4
       DEFENDANT’S MOTION TO SEAL                             CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB     Document 501       Filed 06/26/25   PageID.29279   Page
                                     6 of 8


   1   Orders in connection with class certification briefing and argument (ECF Nos. 365,
   2   381, 390, 391, 397, 421, 498) and protective order briefing and argument (ECF 466,
   3   467, 477), Plaintiffs’ Motions to Seal (ECF Nos. 376, 384, 394, 463), BANA’s prior
   4   Motions to Seal (ECF Nos. 328, 337, 344, 347, 383, 418, 451, 470) and
   5   accompanying declarations submitted in support thereof (ECF Nos. 344-1, 344-2,
   6   344-3, 347-1, 347-2), all of which are incorporated herein by reference, BANA
   7   respectfully requests that the Court grant Defendant’s Motion to Seal Documents
   8   Filed In Support of its Motion to Reconsider the Court’s May 29, 2025 Order
   9   Granting in Part and Denying in Part Defendant’s Motion for Protective Order
  10   because good cause supports sealing thereof.
  11
       Dated: June 26, 2025             Respectfully submitted,
  12
                                        By: s/ Matthew L. Riffee_________________
  13
                                            MATTHEW L. RIFFEE (pro hac vice)
  14                                        MRiffee@goodwinlaw.com
                                            THOMAS M. HEFFERON (pro hac vice)
  15                                        THefferon@goodwinlaw.com
                                            SABRINA M. ROSE-SMITH (pro hac vice)
  16                                        SRoseSmith@goodwinlaw.com
                                            GOODWIN PROCTER LLP
  17                                        1900 N St. NW
                                            Washington, DC 20036
  18                                        Tel: +1 202 346 4000
                                            Fax: +1 202 346 4444
  19
                                            JAMES W. MCGARRY (pro hac vice)
  20                                        JMcGarry@goodwinlaw.com
                                            GOODWIN PROCTER LLP
  21                                        100 Northern Avenue
                                            Boston, MA 02210
  22                                        Tel.: +1 617 570 1000
                                            Fax: +1 617 523 1231
  23
                                            LAURA G. BRYS (SBN 242100)
  24                                        LBrys@goodwinlaw.com
                                            GOODWIN PROCTER LLP
  25                                        601 S Figueroa St., Suite 4100
                                            Los Angeles, CA 90017
  26                                        Tel.: +1 213 426 2500
                                            Fax: +1 617 346 4444
  27
                                            VALERIE A. HAGGANS (pro hac vice)
  28                                        VHaggans@goodwinlaw.com
                                              5
       DEFENDANT’S MOTION TO SEAL                          CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB     Document 501       Filed 06/26/25   PageID.29280   Page
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   1                                      LINDSAY E. HOYLE (pro hac vice)
                                          LHoyle@goodwinlaw.com
   2                                      GOODWIN PROCTER LLP
                                          620 Eighth Avenue
   3                                      New York, NY 10018
                                          Tel: +1 212 813-8800
   4                                      Fax: +1 212 355-3333
   5                                      YVONNE W. CHAN (pro hac vice)
                                          YChan@jonesday.com
   6                                      JONES DAY
                                          100 High Street
   7                                      Boston, MA 02110
                                          Tel.: +1 617 960 3939
   8                                      Fax: +1 617 449 6999
   9                                      JANICE P. BROWN (SBN 114433)
                                          jbrown@myersnave.com
  10                                      MATTHEW B. NAZARETH (SBN
                                          278405)
  11                                      mnazareth@myersnave.com
                                          MEYERS NAVE
  12                                      600 B Street, Suite 1650
                                          San Diego, CA 92101
  13
                                          Attorneys for Defendant
  14                                      BANK OF AMERICA, N.A.
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       DEFENDANT’S MOTION TO SEAL                          CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB      Document 501       Filed 06/26/25   PageID.29281   Page
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   1                            CERTIFICATE OF SERVICE
   2         I hereby certify that I electronically filed the foregoing with the clerk of the
   3   court for the United States District Court for the Southern District of California by
   4   using the CM/ECF system on June 26, 2025. I further certify that all participants in
   5   the case are registered CM/ECF users and that service will be accomplished by the
   6   CM/ECF system. I certify under penalty of perjury that the foregoing is true and
   7   correct.
   8

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  10    Executed:   June 26, 2025                    s/ Matthew L. Riffee
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       DEFENDANT’S MOTION TO SEAL                           CASE NO. 21-MD-02992-GPC-MSB


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