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Home Court filings In re: Bank of America California Unemployment Benefits Litigation — S.D. Cal., No. 21-md-02992 MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 511)

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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 511)

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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.

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Case 3:21-md-02992-GPC-MSB     Document 511   Filed 07/03/25   PageID.29615   Page
                                     1 of 7


   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
  24

  25

  26

  27

  28


       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
                                      2 of 7


   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
                                               1
       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.29617    Page
                                       3 of 7


   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
Case 3:21-md-02992-GPC-MSB          Document 511         Filed 07/03/25    PageID.29618       Page
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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.
                                                     3
       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.29619       Page
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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
Case 3:21-md-02992-GPC-MSB     Document 511       Filed 07/03/25   PageID.29620   Page
                                     6 of 7


   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.
                                              5
       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.
   8

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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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