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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 542)
Summary
Bank of America, N.A.'s motion to file documents under seal with its reply brief supporting its motion to reconsider the court's May 29, 2025 order on its motion for a protective order, filed 08/08/25 as Document 542 in In re Bank of America California Unemployment Benefits Litigation, Case 3:21-md-02992-GPC-MSB. The bank seeks to seal portions of the reply that discuss already-sealed exhibits, and portions of the declaration of Lindsay Hoyle. It points to the court's prior orders finding good cause to seal exhibits in the protective order and reconsideration briefing. The bank argues that good cause is the standard for sealing documents in a discovery dispute, even one about apex depositions of high-level executives.
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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 542).”
Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 542. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-08-08-gov-uscourts-casd-709615-542-0-gov-uscourts-casd-709615-542-0/
, SHA-256 47a889efca4f5e7c22bb2c4b46449d2fc7656db86163d16eb9b6544b7ac7b988.Full text
Case 3:21-md-02992-GPC-MSB Document 542 Filed 08/08/25 PageID.30248 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 ITS REPLY BRIEF IN
19 SUPPORT OF ITS MOTION TO
RECONSIDER THE MAY 29, 2025
20 ORDER GRANTING IN PART
AND DENYING IN PART
21 DEFENDANT’S MOTION FOR
22 PROTECTIVE ORDER
23
Ctrm: 2D – 2nd Floor
24 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 542 Filed 08/08/25 PageID.30249 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 Reply Brief in Support of its Motion to Reconsider the Court’s May 29, 2025 Order
5 Granting in Part and Denying in Part Defendant’s Motion for Protective Order (the
6 “Reply”). Consistent with the Court’s prior sealing orders finding good cause to seal
7 certain exhibits filed with BANA’s Motion for Protective Order (ECF 452, 466),
8 Plaintiffs’ Opposition to Defendant’s Motion for Protective Order (ECF 464, 467),
9 BANA’s Reply in Support of Motion for Protective Order (ECF 471, 477), BANA’s
10 Motion to Reconsider (ECF 502, 507), and Plaintiffs’ Opposition to Defendant’s
11 Motion to Reconsider (ECF 525, 531), BANA seeks to seal portions of the Reply that
12 discuss, reference or reflect the contents of those already-filed and sealed exhibits
13 and portions of the Declaration of Lindsay Hoyle in Support of Defendant’s Reply
14 Brief in Support of Motion to Reconsider the Court’s May 29, 2025 Order Granting
15 in Part and Denying in Part Defendant’s Motion for Protective Order (“Hoyle
16 Decl.”).1
17 As previously stated in BANA’s motions to seal submitted in connection with
18 class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418) and
19 protective order briefing and argument (ECF 451, 463, 470), the public’s right to
20 inspect and copy judicial records is not absolute, and a party faced with the disclosure
21 of confidential or proprietary information may seek to file the documents under seal
22 to avoid disclosure of business information that might result in competitive harm or
23 be used for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
24 1
BANA incorporates by reference its Motion to File Documents Under Seal (ECF
451) in connection with its Motion for a Protective Order (ECF 452), Plaintiffs’
25 Motion to File Documents Under Seal (ECF 463) in connection with Plaintiffs’
Opposition to Defendant’s Motion for Protective Order (ECF 464), BANA’s Motion
26 to File Documents Under Seal (ECF 470) in connection with its Reply in Support of
Motion for Protective Order (ECF 471), BANA’s Motion to File Documents under
27 Seal (ECF 501) in connection with its Motion to Reconsider (ECF 502), and
Plaintiffs’ Motion to File Documents Under Seal (ECF 524) in connection with
28 Plaintiffs’ Opposition to Defendant’s Motion to Reconsider (ECF 525).
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 598 (1978) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal
2 documents filed in connection with a discovery dispute must show “good cause” to
3 seal documents. Courts in this district have held that the good cause standard applies
4 even where the underlying dispute concerns so-called “apex” depositions of high-
5 level executives, as is the case here. See, e.g., BAE Sys. San Diego Ship Repair Inc.
6 v. United States, 670 F. Supp. 3d 1064, 1069 (S.D. Cal. 2023) (hereinafter “BAE
7 Systems”) (finding “good cause” to seal exhibits filed with motion for protective
8 order).
9 Courts consistently seal documents where—as here—disclosure of the
10 confidential business information risks competitive harm to the litigant or improper
11 use of the information such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021
12 WL 3112452, at *18–19 (N.D. Cal. July 22, 2021) (finding compelling reasons to
13 seal confidential onboarding processes, verification of customer identities, and fraud
14 prevention measures); Soria v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal.
15 Apr. 25, 2019) (finding compelling reasons to seal internal fraud investigation
16 procedures because there was a “significant danger that someone could improperly
17 use this information to commit fraud and avoid detection.”). Indeed, this Court
18 largely granted the Parties’ prior motions to seal, finding good cause or compelling
19 reasons to seal documents concerning the same topics that BANA now seeks to seal,
20 including BANA’s fraud detection and prevention policies and strategies (including
21 the fraud filter), call center operations, prepaid fraud losses, state contract issues,
22 cardholder complaints and escalations, and certain of BANA’s interrogatory
23 responses. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 477, 498, 507,
24 531 (the “Sealing Orders”).
25 Consistent with this Court’s Sealing Orders, there is good cause to seal the
26 confidential documents and testimony at issue here (or references thereto), as well as
27 substantive discussions of already sealed exhibits filed in connection with BANA’s
28 Motion for Protective Order, Plaintiffs’ Opposition to Defendant’s Motion for
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1 Protective Order, BANA’s Reply in Support of Protective Order, BANA’s Motion to
2 Reconsider, or Plaintiffs’ Opposition to Defendants’ Motion to Reconsider because
3 each reflect topics that are likely to cause particularized competitive harm to BANA
4 and which could potentially enable future fraud, and thus pose a danger to BANA’s
5 business and the public. See, e.g., EWB, 2021 WL 3112452, at *18–19 (finding
6 compelling reasons to seal where public disclosure of EWB’s confidential
7 onboarding processes, verification of customer identities and fraud prevention
8 measures would “harm [the bank’s] competitive standing”); Soria, 2019 WL
9 8167925, at *4 (finding compelling reasons to seal bank’s internal procedures for
10 investigating fraud because there was a “significant danger that someone could
11 improperly use this information to commit fraud and avoid detection”). Each
12 document was also properly designated as “Confidential” or “Highly Confidential –
13 Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
14 Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
15 connection with an apex discovery dispute because “information in the exhibits fits
16 within ‘confidential information’ in the protective order”).
17 Specifically, the portions of the Reply and Hoyle Declaration that BANA seeks
18 to seal refer to or discuss Confidential and Highly Confidential – Attorneys’ Eyes
19 Only documents and testimony pertaining to the following categories of documents
20 and information:
21 Portions of the Reply reflect discussions of confidential BANA fraud
22 prevention strategies and policies that could be misused by fraudsters to
23 perpetrate future fraud or could be used by another financial institution
24 to BANA’s competitive disadvantage. See ECF 365 at 5–6, 12; ECF
25 466 at 1; ECF 467 at 1; ECF 477 at 1; Robart Decl. (ECF 347-2) ¶¶ 3–
26 5; Martin Decl. (ECF 347-1) ¶¶ 4–6; see also Cowan v. GE Cap. Retail
27 Bank, 2015 WL 1324848, at *2–3 (N.D. Cal. Mar. 24, 2015)
28 (compelling reasons exist to seal bank’s internal procedures for
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1 investigating fraud and addressing cardholder fraud notifications);
2 Portions of the Reply and the Hoyle Declaration show how BANA
3 structures the group responsible for fraud detection and monitoring
4 strategies, among other banking responsibilities. See ECF 365 at 13-14;
5 ECF 466 at 1; ECF 467 at 1; ECF 477 at 1; Robart Decl. (ECF 344-2) ¶
6 5; Martin Decl. (ECF 344-1) ¶ 9; see also EWB, 2021 WL 3112452, at
7 *18-19 (sealing confidential onboarding processes, digital banking
8 platform, fraud management techniques, and verification of customer
9 identities); and
10 Portions of the Reply reflect BANA’s confidential discussions or
11 analyses of its state prepaid unemployment program operations,
12 including but not limited to, fraud volume, claims and call center
13 operations, operational risks and losses, and approval of fraud strategies.
14 See ECF 365 at 10–13, n. 14; ECF 466 at 1; ECF 467 at 1; ECF 477 at
15 1; Martin Decl. (ECF 344-1) ¶¶ 5, 7–10; Martin Decl. (ECF 347-1) ¶¶
16 10–12; Robart Decl. (ECF 344-2) ¶ 4; see Brady v. Grendene USA, Inc.,
17 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J. Curiel) (sealing
18 confidential business information that might harm the litigants’
19 competitive standing including profit and loss data and contractual
20 agreements).
21 BANA’s requested sealing of portions of the Reply and Hoyle Declaration is
22 consistent with the terms of the Stipulated Protective Order (ECF 82, § 3), with this
23 Court’s prior Sealing Orders (ECF 365, 381, 390, 466, 467, 477, 498, 507, 531), and
24 with rulings in this Circuit. See, e.g., Darisse v. Nest Labs, Inc., 2016 WL 11474174,
25 at *2 (N.D. Cal. June 2, 2016) (sealing class certification motion and declarations
26 that quote or reference confidential exhibits). For the reasons discussed above, there
27 is good cause to seal discussions of those topics, testimony and documents discussed
28 in the Parties’ briefing. See supra at 1-4.
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 * * *
2 For the foregoing reasons and for the reasons set forth in the Court’s Sealing
3 Orders in connection with class certification briefing and argument (ECF 365, 381,
4 390, 391, 397, 421, 498), protective order briefing and argument (ECF 466, 467,
5 477), and reconsideration briefing and argument (ECF 507, 531), Plaintiffs’ Motions
6 to Seal (ECF 376, 384, 394, 463, 524), BANA’s prior Motions to Seal (ECF 328,
7 337, 344, 347, 383, 418, 451, 470, 501) and accompanying declarations submitted in
8 support thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which are
9 incorporated herein by reference, BANA respectfully requests that the Court grant
10 Defendant’s Motion to Seal Documents Filed In Support of its Reply Brief in Support
11 of its Motion to Reconsider the Court’s May 29, 2025 Order Granting in Part and
12 Denying in Part Defendant’s Motion for Protective Order because good cause
13 supports sealing thereof.
14
Dated: August 8, 2025 Respectfully submitted,
15
By: s/ Lindsay E. Hoyle_________________
16
MATTHEW L. RIFFEE (pro hac vice)
17 MRiffee@goodwinlaw.com
THOMAS M. HEFFERON (pro hac vice)
18 THefferon@goodwinlaw.com
SABRINA M. ROSE-SMITH (pro hac vice)
19 SRoseSmith@goodwinlaw.com
GOODWIN PROCTER LLP
20 1900 N St. NW
Washington, DC 20036
21 Tel: +1 202 346 4000
Fax: +1 202 346 4444
22
JAMES W. MCGARRY (pro hac vice)
23 JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
24 100 Northern Avenue
Boston, MA 02210
25 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
26
LAURA G. BRYS (SBN 242100)
27 LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
28 601 S Figueroa St., Suite 4100
5
DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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1 Los Angeles, CA 90017
Tel.: +1 213 426 2500
2 Fax: +1 617 346 4444
3 VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
4 LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
5 GOODWIN PROCTER LLP
620 Eighth Avenue
6 New York, NY 10018
Tel: +1 212 813-8800
7 Fax: +1 212 355-3333
8 YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
9 JONES DAY
100 High Street
10 Boston, MA 02110
Tel.: +1 617 960 3939
11 Fax: +1 617 449 6999
12 JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
13 MATTHEW B. NAZARETH (SBN
278405)
14 mnazareth@myersnave.com
MEYERS NAVE
15 600 B Street, Suite 1650
San Diego, CA 92101
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Attorneys for Defendant
17 BANK OF AMERICA, N.A.
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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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.
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10 Executed: August 8, 2025 s/ Lindsay E. Hoyle
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DEFENDANT’S MOTION TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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