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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 511)
Summary
Defendant's Motion to File Documents Under Seal in Support of Its Motion to Stay Pending Resolution of Rule 23(f) Petition, filed 07/03/25 as Document 511 in In re: Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB in the Southern District of California. Bank of America, N.A. asks to seal portions of Exhibit 1 to the Declaration of Valerie Haggans, its petition, and related references in its stay motion. It says Exhibit 1 draws on sealed material including the Order Granting Class Plaintiffs' Motion for Class Certification and its Remediation Plan. The bank says it previously filed an unopposed motion to seal the petition in the Ninth Circuit Court of Appeals in Chong, et al. v. Bank of America, N.A., No. 25-4072.
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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 511).”
Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 511. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-07-03-gov-uscourts-casd-709615-511-0-gov-uscourts-casd-709615-511-0/
, SHA-256 4c2e76ff25c278639502a64c81ec917d0cdea375bee1659b31fed4ff8d8bcef8.Full text
Case 3:21-md-02992-GPC-MSB Document 511 Filed 07/03/25 PageID.29615 Page
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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 STAY PENDING
RESOLUTION OF RULE 23(f)
20 PETITION
21
22
Ctrm: 2D – 2nd Floor
23 Judge: Hon. Gonzalo P. Curiel
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 511 Filed 07/03/25 PageID.29616 Page
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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 Stay Pending Resolution of Rule 23(f) Petition (“Stay Motion”). In
5 particular, BANA seeks to seal portions of Exhibit 1 to the Declaration of Valerie
6 Haggans in Support of Defendant’s Motion to Stay Pending Resolution of Rule 23(f)
7 Petition and references within its Stay Motion relating to the sealed contents of
8 Exhibit 1 because good cause and compelling reasons support the sealing of the
9 identified document.
10 As previously stated in BANA’s motions to seal submitted in connection with
11 class certification briefing, argument, and the Court’s order (ECF 328, 344, 347,
12 495), the public’s right to inspect and copy judicial records is not absolute, and a
13 party faced with the disclosure of confidential or proprietary information may seek
14 to file the documents under seal to avoid disclosure of business information that
15 might result in competitive harm or be used for improper purposes. See Nixon v.
16 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)) (denying disclosure); Local Civ.
17 R. 79.2(c). A party seeking to seal documents filed in connection with a discovery
18 dispute must show “good cause” to seal documents. Provide Com., Inc. v. Hartford
19 Fire Ins. Co., 2014 WL 1877438, at *2 (S.D. Cal. May 9, 2014) (applying the good
20 cause standard in granting motion to seal portions of motion to stay).
21 Courts consistently seal documents where—as here—disclosure of the
22 confidential business information risks competitive harm to the litigant or improper
23 use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
24 WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
25 seal confidential onboarding processes, verification of customer identities, and fraud
26 prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
27 Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
28 procedures because there was a “significant danger that someone could improperly
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 use this information to commit fraud and avoid detection.”). Indeed, this Court
2 largely granted the Parties’ prior motions to seal, finding good cause or compelling
3 reasons to seal documents concerning the same topics that BANA now seeks to seal,
4 including but not limited to, BANA’s fraud detection and prevention policies and
5 strategies; claims review policies and strategies and their implementation; analyses
6 of transactional fraud; analyses of claims fraud and potential strategies to combat that
7 fraud; and BANA’s implementation of the Remediation Plans. See ECF 365, 381,
8 498 (the “Sealing Orders”).
9 Consistent with this Court’s Sealing Orders, there is good cause to seal
10 portions of the document filed in connection with BANA’s Stay Motion (or
11 references thereto) because they reflect topics that are likely to cause particularized
12 competitive harm to BANA and which could potentially enable future fraud, and thus
13 pose a danger to BANA’s business and the public. See, e.g., EWB, 2021 WL
14 3112452, at *18–19 (finding compelling reasons to seal where public disclosure of
15 EWB’s confidential onboarding processes, verification of customer identities and
16 fraud prevention measures would “harm [the bank’s] competitive standing”); Soria,
17 2019 WL 8167925, at *4 (finding compelling reasons to seal bank’s internal
18 procedures for investigating fraud because there was a “significant danger that
19 someone could improperly use this information to commit fraud and avoid
20 detection”). Each underlying document was also properly designated as
21 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” under the Protective
22 Order entered by this Court.
23 Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
24 documents and testimony that BANA relied upon in drafting Exhibit 1
25 (Memorandum of Points and Authorities in Support of Motion for Class
26 Certification; Order Granting Class Plaintiffs’ Motion for Class Certification; Expert
27 Declaration of Teresa A. Pesce; Declarations of Michael J. Letson, William Martin,
28 and Jennifer Lennon; Bank of America’s Responses and Objections to Plaintiff
2
DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 Yick’s Fourth Set of Interrogatories and Second Set of Responses (ROG Nos. 28 and
2 29); Bank of America’s Second Set of Responses and Objections to Plaintiff Yick’s
3 Seventh Set of Interrogatories (ROG Nos. 39); and the Remediation Plan and
4 Addenda were previously sealed by this Court.1 See ECF 365, 381 and 498. The
5 document (and references thereto) BANA seeks to seal now include the following
6 categories of documents and information:
7 Exhibit 1 (and portions of the Stay Motion) reflect confidential BANA
8 fraud prevention strategies and policies that could be misused by
9 fraudsters to perpetrate future fraud or could be used by another
10 financial institution to BANA’s competitive disadvantage. See
11 Amended Sealing Order (ECF 365) at 5–6, 12; see also Cowan v. GE
12 Cap. Retail Bank, 2015 WL 1324848, at *2–3 (N.D. Cal. Mar. 24, 2015)
13 (compelling reasons to seal bank’s internal procedures for investigating
14 fraud and addressing cardholder fraud notifications);
15 Exhibit 1 (and portions of the Stay Motion) reflect confidential BANA
16 analyses pertaining to fraud on prepaid unemployment cards that
17 similarly could be misused by fraudsters to perpetrate future fraud or
18 could be used by another financial institution to BANA’s competitive
19 disadvantage. See Amended Sealing Order (ECF 365) at 5–9, 12; see
20 also Cowan, 2015 WL 1324848, at *2–3 (compelling reasons to seal
21 bank’s internal procedures for investigating fraud and addressing
22 cardholder fraud notifications);
23 Exhibit 1 (and portions of the Stay Motion) reflect BANA’s confidential
24 analyses of its state prepaid unemployment program operations,
25 including but not limited to, contractual negotiations, fraud volume,
26 claims and call center operations, and operational risks and losses. See
27 1
After consent from Plaintiffs’ Counsel, BANA previously filed an Unopposed Motion to Seal
the very Petition that is the subject of this Motion in the Ninth Circuit Court of Appeals. See
28 Chong, et al. v. Bank of America, N.A., No. 25-4072, ECF 3.
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 Amended Sealing Order (ECF 365) at 10–13, n. 14; see Brady v.
2 Grendene USA, Inc., 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015)
3 (J. Curiel) (sealing confidential business information that might harm
4 the litigants’ competitive standing including profit and loss data and
5 contractual agreements);
6 Exhibit 1 (and portions of the Stay Motion) reflect confidential BANA
7 testimony pertaining to BANA’s Remediation Plans with the Office of
8 the Comptroller of the Currency (“OCC”) and the Consumer Financial
9 Protection Bureau (“CFPB”)—which were designated Highly
10 Confidential – Attorneys’ Eyes Only at those regulators’ requests—
11 which this Court has found compelling reasons to seal. Amended
12 Sealing Order (ECF 365) at 14–16; see also Erhart v. BofI Fed. Bank,
13 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing information
14 that the OCC asserted bank examination privilege over but permitted to
15 be produced subject to confidentiality protections).
16 * * *
17 For the foregoing reasons and for the reasons set forth in the Court’s Sealing
18 Orders (365, 381, 498), Plaintiffs’ Motions to Seal (ECF Nos. 376, 384, 394, 463),
19 BANA’s prior Motions to Seal (ECF Nos. 328, 337, 344, 347, 383, 418, 451, 470,
20 501) and accompanying declarations submitted in support thereof (ECF Nos. 344-1,
21 344-2, 344-3, 347-1, 347-2), all of which are incorporated herein by reference,
22 BANA respectfully requests that the Court grant Defendant’s Motion to Seal
23 Documents Filed in Support of its Motion to Stay Pending Resolution of the Rule
24 23(f) Petition because good cause supports sealing thereof.
25
Dated: July 3, 2025 Respectfully submitted,
26
By: s/ James W. McGarry__________________
27
MATTHEW L. RIFFEE (pro hac vice)
28 MRiffee@goodwinlaw.com
4
DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 THOMAS M. HEFFERON (pro hac vice)
THefferon@goodwinlaw.com
2 SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
3 GOODWIN PROCTER LLP
1900 N St. NW
4 Washington, DC 20036
Tel: +1 202 346 4000
5 Fax: +1 202 346 4444
6 JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
7 GOODWIN PROCTER LLP
100 Northern Avenue
8 Boston, MA 02210
Tel.: +1 617 570 1000
9 Fax: +1 617 523 1231
10 LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
11 GOODWIN PROCTER LLP
601 S Figueroa St., Suite 4100
12 Los Angeles, CA 90017
Tel.: +1 213 426 2500
13 Fax: +1 617 346 4444
14 VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
15 LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
16 GOODWIN PROCTER LLP
620 Eighth Avenue
17 New York, NY 10018
Tel: +1 212 813-8800
18 Fax: +1 212 355-3333
19 YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
20 JONES DAY
100 High Street
21 Boston, MA 02110
Tel.: +1 617 960 3939
22 Fax: +1 617 449 6999
23 JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
24 MATTHEW B. NAZARETH (SBN
278405)
25 mnazareth@myersnave.com
MEYERS NAVE
26 600 B Street, Suite 1650
San Diego, CA 92101
27
Attorneys for Defendant
28 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 511 Filed 07/03/25 PageID.29621 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 July 3, 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.
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10 Executed: July 3, 2025 s/ James W. McGarry
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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