Exhibit 1 — In re Bank of America California Unemployment Benefits Litigation (Dkt. 541-2, S.D. Cal. No. 3:21-md-02992)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 541-2 · 2025-08-08 · Docket on CourtListener

Full text

EXHIBIT 1
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REDACTED 
 
No. 25-4072 
——————————————— 
In the 
United States Court of Appeals for the Ninth Circuit 
——————————————— 
IN RE: BANK OF AMERICA CALIFORNIA  
UNEMPLOYMENT BENEFITS LITIGATION, 
 
BANK OF AMERICA, N.A., 
Defendant-Petitioner. 
——————————————— 
On Petition for Leave to Appeal  
from the United States District Court for the Southern District of California 
No. 3:21-MD-02992-GPC-MSB (Curiel, J.) 
——————————————— 
REDACTED REPLY IN SUPPORT OF PETITION FOR  
LEAVE TO APPEAL UNDER FED. R. CIV. P. 23(f) 
——————————————— 
Laura G. Brys 
GOODWIN PROCTER LLP 
601 S. Figueroa St., Ste. 4100 
Los Angeles, Cal. 90017 
lbrys@goodwinlaw.com 
(213) 426-2500 
 
James W. McGarry 
Jordan Bock 
GOODWIN PROCTER LLP 
100 Northern Ave. 
Boston, Mass. 02210 
jmcgarry@goodwinlaw.com 
jbock@goodwinlaw.com 
(617) 570-1000 
 
William M. Jay 
Keith Levenberg 
Matthew L. Riffee 
GOODWIN PROCTER LLP 
1900 N Street, N.W. 
Washington, D.C. 20001 
wjay@goodwinlaw.com 
klevenberg@goodwinlaw.com 
mriffee@goodwinlaw.com 
(202) 346-4000 
Counsel for Petitioners
 
 
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TABLE OF CONTENTS 
Page 
ARGUMENT ............................................................................................................. 2 
I. 
Plaintiffs misunderstand the “death knell” factor. ...................................... 2 
II. The district court committed manifest error assessing 
predominance, and Plaintiffs’ defense of that error just underscores 
the failsafe problem. .................................................................................... 3 
A. The district court violated Circuit precedent on predominance. .......... 3 
B. The failsafe class does not avoid the predominance problem. ............. 7 
III. The petition presents questions worthy of this Court’s attention. ............. 10 
IV. There is no public-policy imperative for a class action here..................... 11 
CONCLUSION ........................................................................................................ 12 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Almon v. Conduent Bus. Servs., LLC, 
2022 WL 4545530 (W.D. Tex. Sept. 28, 2022) ................................................. 12 
In re Apple Inc. Device Perf. Litig., 
50 F.4th 769 (9th Cir. 2022) ................................................................................. 8 
Chamberlan v. Ford Motor Co., 
402 F.3d 952 (9th Cir. 2005) .......................................................................... 2, 10 
Ford v. TD Ameritrade Holding Corp., 
995 F.3d 616 (8th Cir. 2021) ................................................................................ 7 
Johnson v. Yahoo! Inc., 
2018 WL 835339 (N.D. Ill. Feb. 13, 2018) .......................................................... 9 
Kamar v. Radio Shack Corp., 
375 F. App’x 734 (9th Cir. 2010) ......................................................................... 8 
Kamm v. Cal. Dev. Co., 
509 F.2d 205 (9th Cir. 1975) .............................................................................. 12 
Lee v. Pep Boys-Manny Moe & Jack of California, 
2015 WL 9480475 (N.D. Cal. Dec. 23, 2015) ...................................................... 5 
Nelson v. Conduent Bus. Servs. LLC, 
2020 WL 5587450 (N.D. Ga. Sept. 18, 2020) .................................................... 11 
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 
31 F.4th 651 (9th Cir. 2022) ........................................................................... 6, 10 
In re Rail Freight Fuel Surcharge Antitrust Litig., 
725 F.3d 244 (D.C. Cir. 2013) .............................................................................. 2 
Saucillo v. Peck, 
25 F.4th 1118 (9th Cir. 2022) ............................................................................... 8 
True Health Chiropractic v. McKesson Corp., 
896 F.3d 923 (9th Cir. 2018) ................................................................................ 4 
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Van v. LLR, Inc., 
61 F.4th 1053 (9th Cir. 2023) ................................................................... 1, 3, 4, 6 
Wal-Mart Stores, Inc. v. Dukes, 
564 U.S. 338 (2011) .............................................................................................. 5 
Other Authorities 
1 Wm. B. Rubenstein, NEWBERG & RUBENSTEIN ON CLASS ACTIONS 
§ 3.6 (6th ed. 2025) ............................................................................................... 9 
Fed. R. Civ. P. 23(b)(3) ........................................................................................ 7, 10 
Fed. R. Civ. P. 23(f) ......................................................................................... 2, 3, 12 
 
 
 
 
 
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The district court erroneously certified classes of over 100,000 people despite 
a problem that should have been insurmountable: the classes demonstrably include 
fraudsters who stand to compound ill-gotten fraud gains with an ill-gotten share of 
any class recovery, and Plaintiffs have no method for figuring out who they are. As 
this Court recognized in Van v. LLR, Inc., 61 F.4th 1053 (9th Cir. 2023), that failure 
alone precludes class certification.  
Plaintiffs’ attempted defense of the certification order just heightens the need 
for appellate review. Precisely to avoid the individualized inquiry necessary to 
identify which class members are in fact fraudsters, Plaintiffs now maintain that they 
will allow any class member BANA unilaterally identifies as potentially fraudulent 
to be booted from the class—even up to the day of trial. That does not provide a 
coherent methodology to solve the predominance problem; it compounds the 
problem, and creates an impermissible failsafe class in which class membership 
hinges on the merits of the underlying claims.  
Appellate review of these massive classes is warranted now, to ensure that the 
district court’s manifest errors on the predominance and failsafe issues will not 
escape review and to provide guidance on recurring, important class-certification 
questions. 
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ARGUMENT 
I. 
Plaintiffs misunderstand the “death knell” factor. 
Rule 23(f) appeals are favored when the stakes of a class-certification ruling 
are so high the defendant would be “virtually compel[led]” to settle rather than press 
potentially meritorious defenses through trial and, if need be, appeal from final 
judgment. Chamberlan v. Ford Motor Co., 402 F.3d 952, 958 (9th Cir. 2005). 
Plaintiffs cannot deny that 
 they seek easily clears that threshold. 
So Plaintiffs seek to obscure the point that the pertinent death knell is “the 
death knell of the litigation,” not the defendant. Chamberlan, 402 F.3d at 958 
(emphasis added); see also, e.g., In re Rail Freight Fuel Surcharge Antitrust Litig., 
725 F.3d 244, 252 (D.C. Cir. 2013) (“The death knell marks not the defendant’s 
demise, but the litigation’s.”). “[I]t is enough that certification generate[s] 
unwarranted pressure to settle nonmeritorious or marginal claims,” which a “vast 
sum in damages” that is “subject to trebling” could create even for an amply 
capitalized defendant. Rail Freight, 725 F.3d at 251-52 (internal quotation marks 
omitted); accord Chamberlan, 402 F.3d at 958 (Rule 23(f) enables review of 
certifications that “put considerable pressure on the defendant to settle independent 
of the merits of the plaintiffs’ claims”) (internal quotation marks omitted). Thus, 
Plaintiffs are wrong that Chamberlan establishes that “the death knell of the 
litigation” requires a “showing that [the defendant] lacks the resources to defend 
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th[e] case to a conclusion.” Opp. 10-11 (internal quotation marks omitted). If the law 
were otherwise, no large company could ever obtain Rule 23(f) review.  
II. 
The district court committed manifest error assessing predominance, 
and Plaintiffs’ defense of that error just underscores the failsafe 
problem. 
The district court failed to hold Plaintiffs to their burden to establish 
predominance under the framework this Court outlined in Van—and then tried to 
avoid the problem by relying on an improper failsafe class definition. See Pet. 14-
18. The Opposition repeats the same legal errors. 
A. 
The district court violated Circuit precedent on predominance. 
Nothing in the district court’s order or Plaintiffs’ Opposition identifies what 
Van requires for predominance: a reliable methodology to identify and eliminate 
fraudsters from among the unnamed class members, without needing case-by-case-
adjudication and without assuming away meritorious defenses. Plaintiffs contend 
that “15 pages of the district court’s order … carefully apply Van to the factual 
record.” Opp. 12 (citing A51-65, 85-86). That is wrong: Most of that section is 
unrelated to predominance, and it cites Van just twice—and only to reference the 
general legal standard. A62, A67. And regardless of how many pages the district 
court took to “apply Van,” the problem remains that it misapplied Van.  
Plaintiffs try to prop up the district court’s reasoning with a laundry list of 
seven arguments. Opp. 14-15. First they argue that “any individuals determined by 
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the Bank to be criminals were by definition excluded from the class.” Opp. 14 (citing 
A59). This is untrue: BANA found 
 
, which, under Van, is “sufficient to prove that an inquiry into the 
circumstances and motivations behind each of the [thousands of class members] 
might be necessary.” 61 F.4th at 1069. That underscores the district court’s 
predominance error, since that inquiry necessarily involves case-by-case 
adjudications. By leaning on the class “definition,” the district court skipped this 
step entirely (and made the class an improper failsafe class—see infra Part II.B). 
Plaintiffs’ next two justifications likewise miss the mark. Opp. 14-15. 
Plaintiffs maintain that predominance is no obstacle so long as BANA shoulders all 
the work of conducting the required case-by-case adjudication. Specifically, 
Plaintiffs argue that BANA bears the burden under EFTA to show that a transaction 
was authorized, and further that it has access to all the information necessary to do 
so. Id.; see also Opp. 17. Both arguments lack merit. The predominance analysis 
focuses on whether individualized inquiries will be required, not on which party 
furnishes the evidence needed to conduct them. Pet. 21-22. Thus, even if Plaintiffs 
were correct on the burden point (they are not, see Pet. 20 n.2), an issue on which a 
defendant bears the burden can defeat predominance, see True Health Chiropractic 
v. McKesson Corp., 896 F.3d 923, 931-32 (9th Cir. 2018), and “a class cannot be 
certified on the premise that [the defendant] will not be entitled to litigate its 
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statutory defenses to individual claims.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 
338, 367 (2011). And even if all the relevant records really were in BANA’s 
possession (they are not, as discussed below), that would not be dispositive: “there 
still would be no predominance because the Court—or a jury—would need to 
evaluate the records for each class member before making a determination” on 
liability. Lee v. Pep Boys-Manny Moe & Jack of California, 2015 WL 9480475, at 
*14 (N.D. Cal. Dec. 23, 2015).  
Moreover, Plaintiffs themselves acknowledge that BANA’s “own records” do 
not suffice to furnish all relevant evidence: the district court recognized—in 
language Plaintiffs repeat—that “the process of fact-intensive analysis” will need to 
be applied to “EDD’s records,” not just BANA’s. Opp. 20 (citing A63). Further, the 
district court wrongly ignored that much of the evidence necessary to show that each 
individual’s account was created for legitimate purposes—and that they suffered 
actual damages—
 
. Pet. 20-22; A63; RA80-83. Plaintiffs’ Opposition doesn’t address 
any of these issues, nor did their class certification briefing or the Court’s order 
explain how these highly-individualized determinations could be made without 
overwhelming common questions of law or fact. See Pet. 14-18; see also RA80-83. 
This, too, should have defeated predominance (and commonality), and further merits 
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an appeal. See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 
F.4th 651, 669 (9th Cir. 2022); Van, 61 F.4th at 1067. 
Plaintiffs’ four remaining justifications are variations on a theme—in effect, 
that this issue is in the past because BANA had an opportunity to unearth the 
fraudsters in the classes, including pursuant to the Remediation Plan. Opp. 15. As 
the district court recognized, however, BANA provided “evidence that [] 
individualized issues bar recovery on at least some claims.” A62. And once BANA 
showed that “at least some class members lack meritorious claims” because they are 
uninjured, it was unquestionably Plaintiffs’ burden to prove that “class-member-by-
class-member adjudication” will not swamp any common questions of law or fact. 
Van, 61 F.4th at 1069. Plaintiffs scoff that BANA’s 
 identifies only four 
fraudsters 
 
. Regardless, at that rate, 
the class would contain thousands of fraudsters 
 
. Pet. 17-18. Plaintiffs cannot simply 
declare that this review is unlikely to yield further fraudsters. They were required to 
“propose” a “method” to identify and weed out the fraudsters remaining in the 
classes. Olean, 31 F.4th at 666; Pet. 16. They never did. 
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B. 
The failsafe class does not avoid the predominance problem. 
The district court concluded that predominance was satisfied because “the 
proposed Class definition already excludes any person who … has previously 
engaged in fraudulent Program conduct, such as submission of fraudulent claims or 
other abuses of the claims process.” A59 (citing A100). In so doing, the court 
“certified a class in which membership depends upon having a valid claim on the 
merits.” Ford v. TD Ameritrade Holding Corp., 995 F.3d 616, 624 (8th Cir. 2021). 
Because the court certified “a fail-safe class … as a means of avoiding a 
predominance problem under Rule 23(b)(3),” the certification should be reversed. 
Id. (internal citation omitted).  
Plaintiffs argue that BANA waived its objection to the failsafe class by not 
raising the issue in its opposition to class certification. Opp. 16, 24. But Plaintiffs 
never suggested in their motion that predominance could be resolved because the 
class definition itself took care of uninjured class members. A246-250. The district 
court created that problem in its order (A59), amplifying a suggestion by Plaintiffs 
in their reply (RA26)—to which BANA had no sur-reply. A party need not “be an 
oracle and predict issues that will arise for the first time in the district court’s final 
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order.” Saucillo v. Peck, 25 F.4th 1118, 1130 (9th Cir. 2022). BANA could not 
forfeit the ability to seek review of this error before the court committed it.1 
The reason Plaintiffs cling so tightly to forfeiture is that they have no ground 
to stand on when it comes to the merits. Their Opposition—appropriately—
references this Court’s account of the ills of failsafe classes in Kamar v. Radio Shack 
Corp., 375 F. App’x 734, 736 (9th Cir. 2010), which perfectly diagnoses the problem 
with the classes certified here: 
The fail-safe appellation is simply a way of labeling the 
obvious problems that exist when the class itself is defined 
in a way that precludes membership unless the liability of 
the defendant is established. When the class is so defined, 
once it is determined that a person, who is a possible class 
member, cannot prevail against the defendant, that 
member drops out of the class. That is palpably unfair to 
the defendant, and is also unmanageable—for example, to 
whom should the class notice be sent? 
Id.; see Opp. 16. But that is exactly what follows from the district court’s logic. The 
court described no process for determining which class members must “drop[] out 
of the class” because they committed fraud. It relied on the class definitions 
themselves to do all the work. A59. But class definitions are not self-executing. 
Saying that the class definition “excludes any person who … engaged in fraudulent 
 
1 Nor do any of the norms around waiver counsel against this Court’s exercising its 
“discretion to consider a purely legal question when”—as here—“the record relevant 
to the matter is fully developed” and “the district court … overlayed its entire 
discussion … with [an] erroneous presumption.” In re Apple Inc. Device Perf. Litig., 
50 F.4th 769, 782 n.9 (9th Cir. 2022) (citing Saucillo, 25 F.4th at 1130 n.7, 1132). 
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Program conduct” just raises the question of how to adjudicate who engaged in 
fraudulent program conduct. Id.; see also 1 Wm. B. Rubenstein, NEWBERG & 
RUBENSTEIN ON CLASS ACTIONS § 3.6 (6th ed. 2025) (“Beyond the unfairness their 
name suggests, fail-safe classes also raise manageability problems. Specifically, 
because class membership turns on the outcome of the merits of the case, a court 
would have to hold individual hearings or mini-trials to determine whether each 
plaintiff satisfies the requirement of class membership …”). 
Plaintiffs contend they can avoid the predominance problem prospectively, 
just by allowing anyone BANA identifies as a fraudster to be kicked out of the 
classes—making plaintiff class membership turn on the defendant’s unilateral 
decision. Opp. 20. That is as counterintuitive as it is unprecedented—and the fact 
that Plaintiffs have turned to that strategy as their last defense confirms that this 
certification order warrants this Court’s review. At the threshold, Plaintiffs’ “idea to 
exclude potential class members based on defendant’s investigation invites concerns 
over adequacy of representation and loyalty to the class.” E.g., Johnson v. Yahoo! 
Inc., 2018 WL 835339, at *4 (N.D. Ill. Feb. 13, 2018). More fundamentally, this 
gambit creates a failsafe problem without solving the predominance problem: 
nothing precludes Plaintiffs from raising a challenge to any person or group of 
people BANA “identifies,” so Plaintiffs’ reassurance that the fraudster-elimination 
“process will not require any trial time” (Opp. 20-21) is manifestly untrue.  
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III. 
The petition presents questions worthy of this Court’s attention. 
Manifest error would be enough to grant the petition by itself, Chamberlan, 
402 F.3d at 959, but this case also warrants review to clarify the applicable legal 
principles for the courts in this Circuit. Plaintiffs’ argument that the petition does not 
raise any “unsettled issue of class action law or procedure” misstates the issues 
presented. Opp. 23. 
The petition seeks “guidance on how to assess whether individualized 
inquiries predominate when all agree the class contains some number of uninjured 
class members.” Pet. 24 (emphasis added). Plaintiffs distort that question by 
claiming that the only question is “whether a class can be certified ‘when all agree 
the class contains some number of uninjured class members.’” Opp. 23 (quoting Pet. 
24). Although that is the issue the Supreme Court recently considered without 
deciding (which could have resolved this case if it had overturned Circuit precedent), 
it is not the question BANA’s petition poses. Olean made it clear that “[w]hen 
individualized questions relate to the injury status of class members, Rule 23(b)(3) 
requires that the court determine whether individualized inquiries about such matters 
would predominate over common questions.” 31 F.4th at 668. But Olean said 
nothing about how the uninjured might be “winnow[ed] out” in a manner comporting 
with the predominance requirement because it ultimately found that “all class 
members ha[d] standing here.” Id. at 683. It falls to some other case—like this one—
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to provide the necessary guidance. Indeed, Plaintiffs’ Opposition only ratcheted up 
the need for guidance (and guardrails), as their disingenuous claim that they can 
solve predominance by allowing BANA to unilaterally exclude any class member 
places this case at the intersection of the predominance and failsafe lines of cases.   
Finally, these critical issues are likely to evade end-of-case review given the 
intense settlement pressure on BANA. See supra Part I. And Plaintiffs’ supposition 
that this case “is just months away from resolution” is barely credible. Opp. 24. The 
parties have yet even to begin briefing summary judgment, and the current pretrial 
conference date is not until next summer. This case could be years, not months, away 
from resolution.  
IV. 
There is no public-policy imperative for a class action here. 
Plaintiffs protest that if their classes cannot be certified here, then an EFTA 
“class could never be certified because the defendant could assert that some class 
members’ claims might have been denied even if the required ‘investigation’ had 
been conducted.” Opp. 22.  But if class treatment were so manifestly appropriate for 
claims challenging EFTA investigation procedures, there would be ample precedent 
for it. In fact the precedents go the other way and “[c]ourts routinely decline to 
certify such overbroadly defined classes.” Nelson v. Conduent Bus. Servs. LLC, 2020 
WL 5587450, at *6 (N.D. Ga. Sept. 18, 2020) (denying certification of “a putative 
class of cardholders who ‘reported fraudulent charges on their accounts and were 
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denied a refund’” because “[t]he breadth of this proposed class definition includes 
customers who reported a transaction that was not, in fact, fraudulent” and who “may 
have no legitimate claim for a refund”); see also Almon v. Conduent Bus. Servs., 
LLC, 2022 WL 4545530, at *14-15 (W.D. Tex. Sept. 28, 2022) (“Defendants must 
be afforded the opportunity to prove that the reported transactions were authorized. 
The threshold question of whether fraud occurred at all is a fact-intensive inquiry 
that will vary with the circumstances of each case…”) (internal citation omitted). 
In any event, Plaintiffs’ insinuation that denying class treatment here would 
license financial institutions to violate EFTA “indiscriminately” (Opp. 22) is 
unfounded, and difficult to square with the fact that their class is definitionally 
limited to people 
 
. See Kamm v. Cal. Dev. 
Co., 509 F.2d 205, 212 (9th Cir. 1975) (class treatment not superior when regulatory 
settlement already provides “significant relief”).      
CONCLUSION 
For the reasons expressed above, BANA respectfully requests that the Court 
grant its Rule 23(f) petition. 
 
 
 
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August 6, 2025 
 
Laura G. Brys 
GOODWIN PROCTER LLP 
601 S. Figueroa St., Ste. 4100 
Los Angeles, Cal. 90017 
lbrys@goodwinlaw.com 
(213) 426-2500 
 
 
 
 
 
 
Respectfully submitted,  
 
s/ William M. Jay 
William M. Jay 
Keith Levenberg 
Matthew L. Riffee 
GOODWIN PROCTER LLP 
1900 N Street, N.W. 
Washington, D.C. 20001 
wjay@goodwinlaw.com 
klevenberg@goodwinlaw.com 
mriffee@goodwinlaw.com 
(202) 346-4000 
 
James W. McGarry 
Jordan Bock 
GOODWIN PROCTER LLP 
100 Northern Ave. 
Boston, Mass. 02210 
jmcgarry@goodwinlaw.com 
jbock@goodwinlaw.com 
(617) 570-1000 
 
Counsel for Petitioners
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CERTIFICATE OF COMPLIANCE 
This brief complies with the type-volume limitation of Circuit Rules 5-2 and 
32-3(2) because, according to the word count of Microsoft Word, the word-
processing system used to prepare the brief, it contains 2,795 proportionately spaced 
words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii). 
This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) 
and the type style requirements of FED. R. APP. P. 32(a)(6) because it has been 
prepared in a proportionally spaced typeface in 14-point, Times New Roman font. 
 
Laura G. Brys 
GOODWIN PROCTER LLP 
601 S. Figueroa St., Ste. 4100 
Los Angeles, CA 90017 
lbrys@goodwinlaw.com 
(213) 426-2500 
 
 
 
s/ William M. Jay 
William M. Jay 
Keith Levenberg 
Matthew L. Riffee 
GOODWIN PROCTER LLP 
1900 N Street, N.W. 
Washington, D.C. 20001 
wjay@goodwinlaw.com 
klevenberg@goodwinlaw.com 
mriffee@goodwinlaw.com 
(202) 346-4000 
 
James W. McGarry 
Jordan Bock 
GOODWIN PROCTER LLP 
100 Northern Ave. 
Boston, Mass. 02210 
jmcgarry@goodwinlaw.com 
jbock@goodwinlaw.com 
(617) 570-1000 
 
Counsel for Petitioners
 
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