STATUS REPORT Joint Statement re: Class Notice by Consolidated Plaintiffs. (Danitz,… — Bofa Ca Unemployment (Dkt. 518)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 518 · 2025-07-16 · Docket on CourtListener

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Joint Statement Re: Class Notice; Case No. 3:21-md-02992-GPC-MSB
 
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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF CALIFORNIA 
 
IN RE BANK OF AMERICA 
CALIFORNIA UNEMPLOYMENT 
BENEFITS LITIGATION 
Case No. 3:21-md-02992-GPC-MSB 
 
JOINT STATEMENT RE: CLASS 
NOTICE 
 
 
This Document Relates to All Actions 
 
Judge: 
Hon. Gonzalo P. Curiel 
Ctrm: 
2D (2nd Floor) 
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Joint Statement Re: Class Notice; Case No. 3:21-md-02992-GPC-MSB
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JOINT STATEMENT RE: CLASS NOTICE 
Pursuant to the Court’s June 16, 2025 Order Granting Class Plaintiffs’ Motion 
for Class Certification; Appointing Class Representatives; and Appointing Co-Lead 
Class Counsel (ECF 494), the Parties have met and conferred and have reached 
agreement regarding the form and manner of class notice; copies of the Parties’ 
proposed long-form and short-form notices are attached hereto as Exhibits 1, 2, and 
3, and are described further below. The Parties disagree only as to the timing of class 
notice, as Bank of America has moved to stay class notice pending the outcome of its 
Rule 23(f) petition to the Ninth Circuit. See ECF 513. Accordingly, the Parties hereby 
respectfully submit this Joint Statement (i) proposing a stipulated class notice plan, 
and (ii) setting forth their respective positions regarding the timing of class notice. 
I. 
Stipulated Proposed Notice Plan 
The Court has certified five classes pursuant to Rule 23(b)(3). Members of 
each certified class are entitled to “the best notice that is practicable under the 
circumstances, including individual notice to all members who can be identified 
through reasonable effort.” Fed. R. Civ. P. 23(c)(2)(B). Notice of the pendency of a 
Rule 23(b)(3) class action may be made by “United States mail, electronic means, or 
other appropriate means.” Id. The class must be notified in a manner that “does not 
systematically leave any group without notice.” Officers for Justice v. Civil Serv. 
Comm’n, 688 F.2d 615, 624 (9th Cir. 1982).  
A. Form of Notice 
The Parties have met and conferred regarding the best form of class notice 
pursuant to Rule 23(c)(2)(B). The Parties propose that notice will be provided to class 
members in both long-form and short-form formats.   
Long-Form Notice. The proposed Long-Form Notice is attached hereto as 
Exhibit 1. Consistent with the requirements of Rule 23(c)(2)(B), the Long-Form 
Notice includes a clear and concise statement explaining: (i) the nature of the action; 
(ii) the class definition of each of the five certified classes; (iii) the class claims, 
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issues, and defenses; (iv) that a class member may enter an appearance through an 
attorney if the member so desires; (v) that the court will exclude from the class any 
member who requests exclusion; (vi) the time and manner for requesting exclusion; 
and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). 
Short-Form Notice. The proposed Short-Form Notice is attached hereto as 
Exhibit 2. The Short Form Notice provides a clear and concise summary of the 
nature of the action, explains why the class member is receiving notice, explains the 
class member’s legal rights and options, explains how class members can request 
exclusion and the deadline for doing so, and directs class members to the case 
website (see infra) where they can access the Long-Form Notice and additional case 
information. 
B. Notice Plan 
The Parties have agreed upon the following proposed Notice Plan consisting of 
three components: (1) individual direct notice via e-mail to all class members for 
whom the Bank has e-mail contact information; (2) individual direct postcard notice 
to all class members via USPS first class mail; and (3) publication notice via a case-
specific website. 
Direct Notice by E-Mail. The Short-Form Notice (Exhibit 2) will be sent as 
an e-mail to all class members for whom the Bank has e-mail contact information, 
which the Bank estimates is approximately 85-90% of all individuals receiving direct 
notice under the proposed Notice Plan. E-mail is recognized as a proper method for 
class notice. See, e.g., In re LinkedIn User Privacy Litig., 309 F.R.D. 573, 586 (N.D. 
Cal. Sept. 15, 2015) (approving e-mail notice); DZ Reserve, et al, v. Meta Platforms, 
Inc., No. 3:18-cv-4978-JD, ECF Nos. 470, 471 (N.D. Cal. Apr. 10, 2025) (approving 
e-mail as the primary form of notice). The e-mail will include a hyperlink to the case 
website, where class members will have access to the Long-Form Notice (Exhibit 1), 
and will also provide the Notice Administrator’s toll-free telephone number. 
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Direct Postcard Notice By U.S. Mail. The Short-Form Notice will be sent as a 
postcard to all class members via USPS first class mail (“Postcard Notice”). The 
proposed Postcard Notice is attached hereto as Exhibit 3. Bank of America has a 
mailing address on file for each class member. Prior to mailing, the Notice 
Administrator will update the Bank-provided mailing address information for class 
members through the U.S. Postal Service’s National Change of Address database. 
The Postcard Notice will direct class members to the Case Website, where they will 
have access to the Long-Form Notice, and will also provide the Notice 
Administrator’s toll-free telephone number. See Utne v. Home Depot U.S.A., Inc., 
2018 WL 11373654, at *1 (N.D. Cal. Aug. 21, 2018) (approving mailed notice that 
directs class members to a website that contains the long-form notice); 3 Newberg on 
Class Actions §8:28 (5th ed. 2017) (“Notice sent by postcards is particularly useful 
when used in conjunction with other forms of notice, including publication and 
email.”).  
Publication Notice via Case Website. The Notice Administrator will create 
and maintain a dedicated case-specific website. The Case Website will contain a 
summary of the case, a copy of the Long-Form Notice (Exhibit 1), and links to key 
case documents, including the complaint and the publicly filed version of the class 
certification order. Class members will be able to opt out electronically through the 
case website. The Notice Administrator will also maintain a toll-free telephone 
number through which class members can request additional information. 
Notice Administrator. The parties have solicited proposals from five agreed-
upon experienced class notice administrators and have received bids from four of 
them. Having reviewed the proposals submitted pursuant to this competitive bidding 
process, Plaintiffs propose that Simpluris be appointed the Notice Administrator. 
Simpluris has extensive experience in providing notice of class actions and has 
provided notice and/or claims administration services in hundreds of class actions, 
and submitted the lowest-cost bid. Bank of America is presently reviewing the bids 
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received, and the Parties expect to be able to reach agreement on a Notice 
Administrator. 
II. 
Timing of Class Notice 
Plaintiffs’ Position 
 
Plaintiffs respectfully request that the Court approve the proposed Notice Plan 
and order that class notice be provided immediately, so that class members may be 
apprised of the pendency of this certified class action and how it may affect their 
legal rights. 
There is no reason to delay class notice. The Court has issued a thorough, 
carefully reasoned 98-page class certification order and has found that all five classes 
meet the requirements for class certification. ECF 494. Members of the certified 
classes have “an undeniable interest in receiving fulsome information” concerning the 
litigation and “clear and prompt notice” of their rights as class members. Behar v. 
Northrup Grumman Corp., No. 2:21-CV-03946-HDV-SK, 2024 WL 5275027 at *1, 
6 (C.D. Cal. Dec. 3, 2024) (denying stay). “‘Ordinarily, notice to class members 
should be given promptly after the certification order is issued,’” and there is no 
reason to depart from this sound principle here. See Andrews v. Plains All Am. 
Pipeline, L.P., No. CV154113PSGJEMX, 2018 WL 4191409 at *2-3 (C.D. Cal. Aug. 
28, 2018) (quoting Manual for Complex Litigation (Fourth) § 21.311 (2004)) 
(denying request to stay class notice pending Rule 23(f) appeal).  
After having already previously moved to stay this case pending resolution of 
Lab’y Corp. of Am. Holdings v. Davis, the Bank once again seeks to stay all 
proceedings, this time based on its pending Rule 23(f) petition. ECF 513. But the 
Bank’s Rule 23(f) petition fails to demonstrate any basis for interlocutory review, 
which is a “rare occurrence” that the Ninth Circuit grants only “sparingly.” 
Chamberlan v. Ford Motor Co., 402 F.3d 952, 955, 959 (9th Cir. 2005).1 The Bank’s 
 
1 Notably, the Ninth Circuit grants only 17% of such petitions for review by 
defendants and reverses fewer than half of these. See Bryan Lammon, An Empirical 
 
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Rule 23(f) petition, which argues principally that this Court “manifestly erred” in 
finding predominance satisfied, is meritless and will likely be denied, and is not a 
basis for delaying class notice. Even in the highly unlikely event that the petition is 
granted and the certification decision is reversed in full or in part, “[t]he risk of 
confusion decertification may have on class members is inherent in any class action 
suit” and is no greater here than in any other class action. Andrews, 2018 WL 
4191409, at *3. Moreover, any potential risk of confusion is mitigated by language 
the parties have agreed to in the Long-Form Notice explaining that the Bank has filed 
a petition seeking interlocutory review and directing class members to the case 
website for up-to-date information on the status of the Bank’s petition and any 
appeal. See Exhibit 1 at 9; Andrews, 2018 WL 4191409, at *3 (“[A]dding curative 
language about the appeal in the class notice provides ‘information reasonably 
necessary to make a decision to remain a class member and be bound by the final 
judgment or opt out of the action.’”) (citation omitted).  
This case has already been pending for more than 4 1/2 years. See 1/17/25 Hrg. 
Tr. at 54:5-7 (“[G]iven that this is a 2021 case, I’m eager to move this forward as 
quickly, as practical … as is prudent.”). The cumulative delays in this case are 
prejudicing Plaintiffs, as witness memories fade, and class members—many of whom 
are economically vulnerable and face housing instability—become more difficult to 
contact over long periods of time. See, e.g., Blair v. Rent-A-Center, Inc., No. C 17-
02335 WHA, 2018 WL 2234049, at *3 (N.D. Cal. May 16, 2018) (denying stay in 
class action on behalf of low-income consumers where “delay would exacerbate the 
risk that putative class members could not be located by the time the case finishes”). 
For all these reasons, Plaintiffs respectfully request that the Court: (1) approve 
the parties’ proposed Notice Plan set forth above; (2) order the Bank to provide a 
class list, in electronic form, containing the name, last-known mailing address, and 
 
Study of Class-Action Appeals, 22 J. App. Prac. & Process 283, 310-11 (2022), 
available at https://ssrn.com/abstract=3589733.  
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last-known e-mail address, where available, corresponding to the Card Alias ID for 
each class member (i.e. those EDD cardholders identified by Card Alias ID in 
Schedule 1 to the Expert Class Certification Report of Greg Regan (ECF 324-007)) to 
Class Counsel and the Notice Administrator within 21 days of entry of the Court’s 
order, see Utne, 2018 WL 11373654, at *2 (ordering production of class member 
contact information to class counsel); (3) direct the Notice Administrator to create a 
case-specific website and disseminate notice in accordance with the proposed Notice 
Plan within 40 days of entry of the Court’s order; (4) set the deadline for class 
members to submit exclusion requests 60 days after the date of notice dissemination; 
and (5) order Class Counsel to file all exclusion requests with the Court within 10 
days of the deadline for exclusion requests. 
Bank of America’s Position 
For the reasons stated in Bank of America’s pending Motion to Stay (ECF 
513), the Court should stay all proceedings in this action—including class notice—
while the Ninth Circuit considers Bank of America’s pending Rule 23(f) petition.  As 
Bank of America explained in its Motion to Stay, there is a substantial likelihood that 
the Ninth Circuit will grant Bank of America’s petition, and it would be unnecessarily 
confusing and inefficient to require notice before the Ninth Circuit addresses Bank of 
America’s petition and appeal.  See ECF 513 at 11-12.  Accordingly, Bank of 
America’s position with respect to class notice is that it should not be issued until the 
Ninth Circuit has resolved BANA’s Rule 23(f) petition and, if the petition is granted, 
Bank of America’s appeal.   
Refraining from requiring class notice while the Ninth Circuit considers Bank 
of America’s Rule 23(f) petition will not prejudice Plaintiffs or the class members 
they seek to represent.  ECF 513 at 11.  As Plaintiffs have defined their classes, every 
single class member has already received more than full compensation for their 
alleged damages, and all Plaintiffs seek now are punitive or statutory damages 
beyond amounts to which they would have otherwise been entitled but for the alleged 
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conduct.  See id.  Conversely, requiring the parties to issue class notice without 
knowing the Ninth Circuit’s position on Bank of America’s petition and appeal would 
be inefficient and unnecessarily confusing to the class members Plaintiffs seek to 
represent in the event the class certification order is reversed, in full or in part.  Id. at 
10-11.  If any or all of the classes are later decertified, confusion will abound and 
Plaintiffs will be confronted with classes they have communicated with but no longer 
represent.  Id. at 11; Brown v. Wal-Mart Stores, Inc., 2012 WL 5818300, *4-5 (N.D. 
Cal. Nov. 15, 2012) (finding “that the balance of hardships tips sharply toward a stay 
in this action” where class certification notice will go out to 22,000 class members 
who may require a curative notice if the Ninth Circuit reverses).2  Thus, Bank of 
America has respectfully requested that the Court stay further proceedings, including 
class notice pursuant to Rule 23(c)(2)(B), while the Ninth Circuit considers Bank of 
America’s Rule 23(f) petition and appeal.  See ECF 513. 
However, subject to Bank of America’s pending Motion to Stay, counsel for 
Bank of America met and conferred with Plaintiffs in accordance with the Court’s 
June 16, 2025 class certification order (ECF 494), and the Parties were able to reach 
the agreement described in Section I of this Joint Statement as to the form and plan 
for class notice if or when it may be required.  With respect to administration of the 
proposed notice, the Parties have met and conferred and have obtained bids from four 
administrators to potentially handle the administration and issuance of the proposed 
notices if and when notice may be required.  Bank of America is in the process of 
reviewing those bids, which Bank of America received from Plaintiffs on the evening 
 
2 Plaintiffs argue that potential confusion concerning Bank of America’s Rule 23(f) 
petition and appeal can be mitigated by language included in the Parties’ proposed 
Long-Form Notice referencing the existence of the petition.  But that language, which 
serves as a placeholder only in the event that the Court were to require notice before 
the Rule 23(f) petition is decided (which it should not), cannot address the primary 
issues and inefficiencies that merit a stay of class notice—which is that confusion 
would abound if and when curative notices are sent to classes of persons who 
Plaintiffs communicated with who they no longer represent. See ECF 513 at 11. 
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of July 15, 2025, and will continue to work with Plaintiffs to select and retain a 
mutually agreeable notice administrator who could issue notice if or when it may be 
required.   
With respect to certain other requests stated in Plaintiffs’ position, the Parties 
have not discussed or reached an agreement regarding the amount of time that may be 
required for Bank of America to provide updated data and contact information 
concerning the classes in advance of class notice.  However, if or when class notice 
may be required, Bank of America would request at least 21 days from the issuance 
of an order requiring class notice to update and provide any information necessary 
regarding class members to administer the class notices.   
Additionally, the Parties have not met and conferred or reached an agreement 
regarding Plaintiffs’ request that certain class members’ personally identifiable or 
confidential unemployment information be provided not only to the Notice 
Administrator, but also to Class Counsel.  If or when class notice is required, Bank of 
America would of course provide the information necessary to the Notice 
Administrator to administer class notices.  However, federal and California privacy 
laws, as well as Bank of America’s agreements with EDD and EDD cardholders, 
would preclude Bank of America from sharing confidential information concerning 
EDD cardholders with Class Counsel at least until class members are given the 
opportunity to opt-out of the class and/or object to the disclosure of their contact 
information.  Thus, if the Court were to issue an order requiring class notice (and it 
should not), it should only require that Bank of America provide the personally 
identifiable information necessary to administer the notice to the Notice 
Administrator at the appropriate time. 
/ / / 
/ / / 
/ / / 
/ / / 
 
 
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Respectfully submitted, 
Dated:  July 16, 2025 
COTCHETT, PITRE & McCARTHY, LLP 
 
By: /s/ Brian Danitz  
 
 
JOSEPH W. COTCHETT  
BRIAN DANITZ  
KARIN B. SWOPE  
VASTI S. MONTIEL 
CAROLINE A. YUEN 
 
Dated:  July 16, 2025 
ALTSHULER BERZON LLP 
 
By: /s/ Connie K. Chan 
 
 
 
MICHAEL RUBIN  
STACEY M. LEYTON  
CONNIE K. CHAN 
COLIN C. JONES 
CAROLINE HUNSICKER 
 
Co-Lead Counsel for Plaintiffs and the Class 
 
Dated:  July 16, 2025 
By:  /s/ Matthew L. Riffee  
 
 
 
JAMES McGARRY 
JMcGarry@goodwinlaw.com 
MICHELLE T. BRIGGS 
MBriggs@goodwinlaw.com 
GOODWIN PROCTER LLP 
100 Northern Avenue 
Boston, MA 02210 
Tel.: +1 617 570 1000 
Fax: +1 617 523 1231 
 
SABRINA M. ROSE-SMITH (pro hac vice) 
SRoseSmith@goodwinlaw.com 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street NW 
Washington, DC 20036 
Tel.: +1 202 346 4000 
Fax: +1 202 346 4444 
 
YVONNE W. CHAN (pro hac vice) 
YChan@jonesday.com 
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JONES DAY 
100 High Street 
Boston, MA 02210 
Tel.: +1 617 960 3939 
Fax: +1 617 449 6999 
 
Counsel for Defendant Bank of America, N.A. 
 
 
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SIGNATURE ATTESTATION 
Pursuant to section 2(f)(4) of the Electronic Case Filing Administrative Policies and 
Procedures Manual, I, Brian Danitz, attest that the other signatories listed, and on whose behalf this 
filing is submitted, concur in the filing content and have authorized this filing. 
 
Dated: July 16, 2025  
 
 
 
/s/ Brian Danitz 
 
 
    Brian Danitz 
 
 
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