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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. 539)

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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 539)

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Bank of America, N.A.'s motion to file documents under seal with its reply in support of its motion to stay pending resolution of its Rule 23(f) petition, in In re Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB, U.S. District Court for the Southern District of California, filed 08/08/25 as Document 539 (7 pages). The bank seeks to seal portions of the reply and Exhibit 1 to the Declaration of Valerie Haggans, which is its reply in support of the Rule 23(f) petition. It says every portion it seeks to seal references documents the court already sealed, covering its fraud detection and prevention policies, claims review strategies and implementation of the remediation plans. It argues disclosure risks competitive harm or could enable future fraud.

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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 539).” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 539. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-08-08-gov-uscourts-casd-709615-539-0-gov-uscourts-casd-709615-539-0/, SHA-256 ce5a0859d2e40852a34ac6983d4e50b4e39b34ee69d636887a5963049357ead2.

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Case 3:21-md-02992-GPC-MSB     Document 539   Filed 08/08/25   PageID.30164   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 ITS REPLY IN
  19                                           SUPPORT OF ITS MOTION TO
                                               STAY PENDING RESOLUTION
  20                                           OF RULE 23(f) PETITION
  21

  22
                                               Ctrm:       2D – 2nd Floor
  23                                           Judge:      Hon. Gonzalo P. Curiel
  24

  25

  26

  27

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       DEFENDANT’S MOTION TO SEAL                       CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB      Document 539       Filed 08/08/25   PageID.30165   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   Reply in Support of its Motion to Stay Pending Resolution of Rule 23(f) Petition
   5   (“Reply”). In particular, BANA seeks to seal portions of the Reply and Exhibit 1 of
   6   the Declaration of Valerie Haggans (“Haggans Decl.”), which is Defendant’s Reply
   7   in Support of its Rule 23(f) Petition, because good cause and compelling reasons
   8   support the sealing of the identified document. All portions of the Reply and Exhibit
   9   1 of the Haggans Decl. that BANA seeks to seal reference documents already found
  10   to warrant sealing by this Court.1 See ECF 365, 381, 390, 391, 498, and 516 (the
  11   “Sealing Orders”).
  12         As previously stated in BANA’s motions to seal submitted in connection with
  13   class certification briefing, argument, and the Court’s order (ECF 328, 344, 347,
  14   495), the public’s right to inspect and copy judicial records is not absolute, and a
  15   party faced with the disclosure of confidential or proprietary information may seek
  16   to file the documents under seal to avoid disclosure of business information that
  17   might result in competitive harm or be used for improper purposes. See Nixon v.
  18   Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (denying disclosure); Local Civ.
  19   R. 79.2(c). A party seeking to seal documents filed in connection with a discovery
  20   dispute must show “good cause” to seal documents. Provide Com., Inc. v. Hartford
  21   Fire Ins. Co., 2014 WL 1877438, at *2 (S.D. Cal. May 9, 2014) (applying the good
  22   cause standard in granting motion to seal portions of motion to stay).
  23         Courts consistently seal documents where—as here—disclosure of the
  24   confidential business information risks competitive harm to the litigant or improper
  25   use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
  26   WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
  27   1
        BANA incorporates by reference its Motion to File Documents Under Seal (ECF
  28
       511) in connection with its Motion to Stay Pending Resolution of Rule 23(f)
       Petition (ECF 513).
                                               1
       DEFENDANT’S MOTION TO SEAL                           CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 539        Filed 08/08/25   PageID.30166   Page
                                       3 of 7


   1   seal confidential onboarding processes, verification of customer identities, and fraud
   2   prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
   3   Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
   4   procedures because there was a “significant danger that someone could improperly
   5   use this information to commit fraud and avoid detection.”). Indeed, this Court
   6   largely granted the Parties’ prior motions to seal, finding good cause or compelling
   7   reasons to seal documents concerning the same topics that BANA now seeks to seal,
   8   including but not limited to, BANA’s fraud detection and prevention policies and
   9   strategies; claims review policies and strategies and their implementation; analyses
  10   of transactional fraud; analyses of claims fraud and potential strategies to combat that
  11   fraud; and BANA’s implementation of the Remediation Plans. See ECF 365, 381,
  12   390, 391, 498, and 516.
  13         Consistent with this Court’s Sealing Orders, there is good cause to seal
  14   portions of the Reply and Exhibit 1 filed therewith because they reflect topics that
  15   are likely to cause particularized competitive harm to BANA and which could
  16   potentially enable future fraud, and thus pose a danger to BANA’s business and the
  17   public. See, e.g., EWB, 2021 WL 3112452, at *18–19 (finding compelling reasons
  18   to seal where public disclosure of EWB’s confidential onboarding processes,
  19   verification of customer identities and fraud prevention measures would “harm [the
  20   bank’s] competitive standing”); Soria, 2019 WL 8167925, at *4 (finding compelling
  21   reasons to seal bank’s internal procedures for investigating fraud because there was
  22   a “significant danger that someone could improperly use this information to commit
  23   fraud and avoid detection”). Each underlying document was also properly designated
  24   as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” under the
  25   Protective Order entered by this Court.
  26         Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
  27   documents and testimony that BANA relied upon in drafting Exhibit 1 of the
  28   Haggans Decl. (Expert Class Certification Report of Greg J. Regan; Declaration of
                                                 2
       DEFENDANT’S MOTION TO SEAL                             CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 539       Filed 08/08/25   PageID.30167   Page
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   1   William M. Martin; the Remediation Plans and Addenda; Plaintiffs’ Motion for Class
   2   Certification; Plaintiffs’ Reply in Support of Motion for Class Certification; and
   3   District Court’s Order Granting Class Plaintiffs’ Motion for Class Certification) were
   4   previously sealed by this Court. See ECF 365, 381, 390, 391, 498, 516. The portions
   5   of the Reply and Exhibit 1 that BANA seeks to seal now include references to and
   6   discussions of the following categories of documents and information:
   7             Portions of Exhibit 1 reflect confidential BANA fraud prevention
   8                strategies and policies that could be misused by fraudsters to perpetrate
   9                future fraud or could be used by another financial institution to BANA’s
  10                competitive disadvantage. See Amended Sealing Order (ECF 365) at
  11                5–6, 12; see also Cowan v. GE Cap. Retail Bank, 2015 WL 1324848, at
  12                *2–3 (N.D. Cal. Mar. 24, 2015) (compelling reasons to seal bank’s
  13                internal procedures for investigating fraud and addressing cardholder
  14                fraud notifications);
  15             Portions of the Reply and Exhibit 1 reflect confidential BANA analyses
  16                pertaining to fraud on prepaid unemployment cards that similarly could
  17                be misused by fraudsters to perpetrate future fraud or could be used by
  18                another financial institution to BANA’s competitive disadvantage. See
  19                Amended Sealing Order (ECF 365) at 5–9, 12; see also Cowan, 2015
  20                WL 1324848, at *2–3 (compelling reasons to seal bank’s internal
  21                procedures for investigating fraud and addressing cardholder fraud
  22                notifications);
  23             Portions of Exhibit 1 reflect BANA’s confidential analyses of its state
  24                prepaid unemployment program operations, including but not limited to,
  25                contractual negotiations, fraud volume, claims and call center
  26                operations, and operational risks and losses. See Amended Sealing
  27                Order (ECF 365) at 10–13, n. 14; see Brady v. Grendene USA, Inc., 2015
  28                WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel) (sealing
                                                3
       DEFENDANT’S MOTION TO SEAL                            CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB       Document 539       Filed 08/08/25    PageID.30168       Page
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   1                confidential business information that might harm the litigants’
   2                competitive standing including profit and loss data and contractual
   3                agreements);
   4               Portions of the Reply and Exhibit 1 reflect confidential BANA
   5                testimony pertaining to BANA’s Remediation Plans with the Office of
   6                the Comptroller of the Currency (“OCC”) and the Consumer Financial
   7                Protection   Bureau    (“CFPB”)—which            were   designated    Highly
   8                Confidential – Attorneys’ Eyes Only at those regulators’ requests—and
   9                BANA’s implementation of the Plans, which this Court has found
  10                compelling reasons to seal. Amended Sealing Order (ECF 365) at 14–
  11                16; see also Erhart v. BofI Fed. Bank, 2019 WL 4534701, at *3 (S.D.
  12                Cal. Sept. 19, 2019) (sealing information that the OCC asserted bank
  13                examination privilege over but permitted to be produced subject to
  14                confidentiality protections).
  15                                       *        *    *
  16         For the foregoing reasons and for the reasons set forth in the Court’s Sealing
  17   Orders (ECF 365, 381, 390, 391, 498, 516), Plaintiffs’ Motions to Seal (ECF 376,
  18   384, 394, 463), BANA’s prior Motions to Seal (ECF 328, 347, 376, 383, 495, 511)
  19   and accompanying declarations submitted in support thereof (ECF 344-1, 344-2,
  20   344-3, 347-1, 347-2), all of which are incorporated herein by reference, BANA
  21   respectfully requests that the Court grant Defendant’s motion to seal portions of
  22   Defendant’s Reply in Support of its Motion to Stay Pending Resolution of the Rule
  23   23(f) Petition and Exhibit 1 filed therewith because good cause supports sealing
  24   thereof.
  25
       Dated: August 8, 2025              Respectfully submitted,
  26
                                          By: s/ Valerie A. Haggans_____________
  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 539       Filed 08/08/25   PageID.30169   Page
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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.
                                              5
       DEFENDANT’S MOTION TO SEAL                          CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB      Document 539       Filed 08/08/25   PageID.30170   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 August 8, 2025. I further certify that all participants
   5   in 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

   9

  10    Executed:   August 8, 2025                   s/ Valerie A. Haggans
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       DEFENDANT’S MOTION TO SEAL                           CASE NO. 21-MD-02992-GPC-MSB


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