Court filing
MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 581)
Summary
Bank of America, N.A.'s notice and motion to seal documents filed in support of its motion to exclude the expert opinions of Chloe N. East, 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 10/17/25 as Document 581 (11 pages). The bank says the documents contain protected material under the stipulated protective order entered on September 24, 2021. It acknowledges that sealing papers on a motion to exclude expert testimony requires compelling reasons because such motions can be dispositive of summary judgment. It argues compelling reasons exist because disclosure of its confidential business information risks competitive harm or could be used to commit fraud, citing the court's earlier sealing orders.
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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 581).”
Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 581. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2025-10-17-gov-uscourts-casd-709615-581-0-gov-uscourts-casd-709615-581-0/
, SHA-256 a58871bb5424d1e12db37e20aa20a93f359f22247d088565d709d43efd6d0b26.Full text
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35501 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 FOR THE 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 BANK OF
18 AMERICA, N.A.’S NOTICE AND
MOTION TO SEAL DOCUMENTS
19 FILED IN SUPPORT OF ITS
MOTION TO EXCLUDE THE
20 EXPERT TESTIMONY OF
21
CHLOE N. EAST
22
Ctrm: 12A – 12th Floor
23 Judge: Hon. Gonzalo P. Curiel
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35502 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. (BANA) hereby submits this Notice and Motion
3 to Seal (the Motion to Seal) certain documents and portions of other documents
4 submitted in connection with BANA’s Motion to Exclude the Expert Opinions of
5 Chloe N. East (the Motion to Exclude).1
6 I. STANDARD TO SEAL DOCUMENTS
7 The public’s right to inspect and copy judicial records is not absolute, and a
8 party faced with the disclosure of confidential or proprietary information may seek
9 to file the documents under seal to avoid disclosure of business information that
10 might result in competitive harm or be used for improper purposes. See Nixon v.
11 Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (denying disclosure); Local Civ.
12 R. 79.2(c). The documents that BANA seeks to seal each contain information that
13 qualifies as “Protected Material” pursuant to the Parties’ Stipulated Protective Order
14 (Protective Order), entered by the Court on September 24, 2021 (ECF 82).
15 Courts in this district have held that a party seeking to seal documents filed in
16 connection with a motion to exclude expert testimony must show “compelling
17 reasons” to seal, as such motions may be effectively “dispositive of a motion for
18 summary judgment.” Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597
19 (9th Cir. 1996) (noting that Daubert ruling was dispositive); see Rink v. Cheminova,
20 Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment
21 on grounds that plaintiff failed to prove causation after the plaintiff's expert was
22 excluded under Daubert).
23 In applying the “compelling reasons” standard, courts, including this Court,
24
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This Motion is based on Defendant’s Notice of Motion and Motion to Seal, the
documents filed in support of Defendant’s Motion to Exclude, including the
26 Declaration of Lindsay E. Hoyle (Hoyle Decl.) submitted herewith, all pleadings and
papers on file in this action, oral argument if requested by the Court, and any such
27 other matters that the Court deems appropriate. Should the Court desire more
detailed briefing to decide Defendant’s Motion to Seal, BANA respectfully requests
28 the opportunity to submit additional briefing in support of sealing.
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 1
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35503 Page
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1 consistently seal documents where—as here—disclosure of the confidential business
2 information risks competitive harm to the litigant or improper use of the information
3 such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021 WL 3112452, at *18–19
4 (N.D. Cal. July 22, 2021) (finding compelling reasons to seal confidential onboarding
5 processes, verification of customer identities, and fraud prevention measures); Soria
6 v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal. Apr. 25, 2019) (finding
7 compelling reasons to seal internal fraud investigation procedures because there was
8 a “significant danger that someone could improperly use this information to commit
9 fraud and avoid detection.”); see also ECF 266, 293, 365, 381, 390, 391, 397, 421,
10 466, 467, 548 (the “Sealing Orders”).
11 II. COMPELLING REASONS EXIST TO SEAL THE CONFIDENTIAL
12 DOCUMENTS.
13 Compelling reasons exist to file under seal each of the confidential documents
14 (or portions thereof) filed in connection with BANA’s Motion to Exclude, and any
15 substantive discussion of those documents contained in BANA’s Motion to Exclude
16 or the declarations or testimony filed in support thereof. Each of those documents
17 and testimony were properly designated as “Confidential” or “Highly Confidential –
18 Attorneys’ Eyes Only” under the Protective Order entered by this Court because each
19 pertains to topics that are likely to cause particularized competitive harm to BANA
20 and which could potentially enable future fraud, which poses a danger to BANA’s
21 business and the public. Multiple of the documents were also designated
22 Confidential because BANA was explicitly instructed by its regulators to keep the
23 documents confidential because they implicate regulatory protections and concern
24 ongoing remediation efforts (see infra at 6).
25 All are compelling reasons which outweigh the public disclosure factors, and
26 thus permit sealing of those documents. For example, in East West Bank v. Shanker,
27 a California district court granted a motion to seal portions of exhibits concerning
28 “confidential onboarding processes, digital banking platform[s], fraud management
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 2
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35504 Page
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1 techniques, and verification of customer identities, which if made public would harm
2 [the bank’s] business,” and found that public disclosure of EWB’s confidential fraud
3 prevention measures would “harm EWB’s business.” 2021 WL 3112452, at *18-19.
4 Similarly, in Soria v. U.S. Bank, N.A., another California district court found
5 compelling reasons to file under seal information related to a bank’s internal
6 procedures for investigating incidents of fraud, explaining that “[a]lthough there is a
7 public interest in [the b]ank’s procedures concerning its fraud investigations, public
8 disclosure of this information may impede [the b]ank’s ability to identify and combat
9 future instances of fraud” and that “[t]here is a significant danger that someone could
10 improperly use this information to commit fraud and avoid detection.” 2019 WL
11 8167925, at *4.
12 Similar compelling reasons exist here. Indeed, this court has already found,
13 compelling reasons to seal documents just like those at issue here, which each relate
14 to confidential business practices and fraud prevention measures that could be
15 misused to commit future fraud or used by competitor banks to BANA’s
16 disadvantage. Earlier in this litigation, Judge Berg determined that there are
17 “compelling reasons” to seal a number of exhibits previously submitted with
18 Plaintiffs’ motion to compel discovery that concern the very same categories of
19 confidential information that BANA seeks to seal here. See ECF 266. In doing so,
20 Judge Berg found that compelling reasons existed to seal information concerning: the
21 Claim Fraud Filter, other fraud and claims strategies, prepaid fraud losses, prepaid
22 updates and trackers, cardholder complaints and escalations, and certain of BANA’s
23 interrogatory responses—which are precisely the types of documents BANA seeks
24 to seal here.
25 This Court also found compelling reasons to seal the same or similar
26 documents related to analyses of claims fraud and potential strategies to combat that
27 fraud including the Claim Fraud Filter and other fraud strategies, operational fraud
28 losses, trainings for claims investigations, fraud detection and prevention policies and
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 3
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35505 Page
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1 strategies, claims review policies and strategies and their implementation, BANA’s
2 analyses of transactional fraud, risk of competitor advantage concerning how BANA
3 structures its claims and frauds teams and the review procedures, protocols and
4 systems therein, its analyses of state prepaid unemployment program operations,
5 fraud prevention programs, organizational charts, confidential regulator materials,
6 and quotes or summary descriptions from sealed exhibits. See ECF 365, 381, 390.
7 Those prior rulings are sufficient grounds alone to grant sealing here. See Lundstrom
8 v. Young, 2022 WL 15524624, at *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel)
9 (considering prior sealing of exhibits when granting motion to seal); Workplace
10 Techs. Rsch., Inc. v. Project Mgmt. Inst., Inc., 2021 WL 6091272, at *3 (S.D. Cal.
11 Oct. 20, 2021) (sealing references to document that court already granted sealing of).
12 Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
13 documents, testimony and declarations that BANA seeks to seal, include but are not
14 limited to, the following categories of documents and information, which this Court
15 has already found compelling reasons to seal:
16 • BANA’s Remediation Plan and Addenda with the OCC and CFPB, and
17 its implementation of those Plans, which both agencies themselves
18 designated as “Highly Confidential – Attorneys’ Eyes Only” (see HX2
19 30, 31) (see ECF 365 at 14–16 (finding compelling reasons to seal));
20 • Documents or testimony concerning aggregated statistics related to
21 EDD benefit recipients account balances, activity, and fraud claims that
22 BANA is obligated to maintain as confidential pursuant to its agreement
23 with EDD (ECF 324-106 at 5), and otherwise would keep as confidential
24 because its disclosure could cause competitive harm to BANA or its
25 customers (see HX 30) (see ECF 365, 381 (finding compelling reasons
26 to seal));
27
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Exhibits to the Declaration of Lindsay E. Hoyle submitted in support of BANA’s
Motion to Exclude are referred to as “HX.”
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 4
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35506 Page
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1 • Expert reports and excerpts of experts’ deposition testimony, which
2 include discussions of BANA’s confidential documents, many of which
3 contain the confidential information described above, including but not
4 limited to: BANA’s handling of unauthorized transaction claims and
5 reconsiderations; BANA’s contract with EDD and the responsibilities
6 thereunder; BANA’s communications with EDD regarding fraud-
7 related measures; BANA’s fraud strategies, including the use of EMV
8 chip technology and the freezing and blocking of accounts; and BANA’s
9 call center procedures and complaint escalation intake channels (see HX
10 32, 33, 34) (see ECF 365, 381 (finding compelling reasons to seal));3
11 and
12 • Excerpts of a 30(b)(6) fact witness’s deposition testimony, which
13 includes discussions of BANA’s confidential documents, many of
14 which contain the confidential information described above, including
15 but not limited to: BANA’s handling of unauthorized transaction claims
16 and reconsiderations; and BANA’s fraud strategies, including the
17 freezing and blocking of accounts. (see HX 30) (see ECF 365, 381
18 (finding compelling reasons to seal)).
19 Documents that risk competitive harm. The aforementioned categories of
20 documents and testimony also contain sensitive business information that could be
21 used to BANA’s competitive or commercial disadvantage, which is yet another
22 compelling reason to seal the documents. See, e.g., E.W. Bank, 2021 WL 3112452,
23 at *18-19 (granting motion to seal where public disclosure of EWB’s confidential
24 fraud prevention measures would “harm EWB’s competitive standing”); Adtrader,
25 Inc. v. Google LLC, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 2020) (sealing
26
3
BANA submits excerpted deposition testimony from 1 expert (HX 33), which
27 BANA designated as Confidential because the witness testified regarding BANA’s
confidential documents and to the same categories of confidential information
28 described above.
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 5
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35507 Page
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1 references to internal strategic decisions, policies, and processes related to detecting
2 and responding to advertising fraud).
3 For example, discussions regarding the fraud claims filed by EDD cardholders
4 and the combined monetary amounts of fraud associated therewith (HX 30) are
5 proprietary, confidential business information of EDD and/or BANA. ECF 344-1
6 (Martin Decl.) ¶¶ 10-12. Such commercially sensitive information, from which
7 certain of BANA’s revenues and fraud losses could be derived, and if disclosed,
8 could be used by another financial institution to compete against BANA, which
9 warrants sealing. See, e.g., Brady, 2015 WL 6828400, at *3. This Court has
10 previously found compelling reasons to limit public access to such documents
11 because their disclosure could lead to harm to BANA’s competitive advantage. See
12 ECF 381.
13 Confidential regulator materials. Compelling reasons exist to seal HX 30
14 and 31, which contain documents and testimony regarding BANA’s implementation
15 of its Remediation Plan and Addenda with the OCC and CFPB. The regulators
16 designated the Plans “Highly Confidential – Attorneys’ Eyes Only” as a condition to
17 BANA producing them to Plaintiffs, and they contain information the OCC deemed
18 privileged and confidential under its statutes and regulations. Standing alone, the
19 regulators’ determination and designation—which Plaintiffs readily agreed to when
20 they accepted the documents last year—should be a sufficient, compelling reason to
21 seal the Plans and any documents quoting from or referencing those Plans. See, e.g.,
22 Erhart v. BofI Fed. Bank, 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing
23 information that the OCC asserted bank examination privilege over but permitted to
24 be produced subject to confidentiality protections). See also ECF 344-3 (Lennon
25 Decl.) ¶¶ 3–4, 6. This Court has previously found compelling reasons to limit public
26 access to such documents because they contain highly sensitive, and confidential
27 information that would subject any disclosure to potential fraud. ECF 381, 498.
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 6
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35508 Page
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1 BANA’s Motion to Exclude, expert reports and appendix of exhibits that
2 quote and summarize confidential exhibits. BANA has provisionally redacted and
3 sealed portions of its Motion to Exclude, expert reports appended in support thereof,
4 and the appendix of exhibits to the Motion to Exclude that quote or describe the
5 confidential documents, testimony and topics identified above, including BANA’s
6 fraud, claims and call center policies, strategies and practices, as well as BANA’s
7 implementation of the Remediation Plan and Addenda (see HX 32, 33, 34). See
8 supra, pgs. 4-6. This is consistent with the terms of the Stipulated Protective Order
9 (ECF 82, § 3), and with rulings in this circuit including by this Court. See, e.g.,
10 Darisse v. Nest Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal. June 2, 2016)
11 (sealing class certification motion and declarations that quote or reference
12 confidential exhibits); ECF 365, 381.
13 For example, portions of the Motion to Exclude reference confidential
14 deposition testimony of BANA’s expert witness and provisionally sealed portions of
15 Plaintiffs’ expert report pertaining to the details of the Claim Fraud Filter and other
16 BANA claim investigation processes, as well as the Remediation Plan and Addenda;
17 reference confidential documents and testimony related to the Claim Fraud Filter, the
18 Remediation Plan and Addenda, and provisionally sealed portions of Plaintiffs’
19 expert report, among other confidential topics; and quote from or describe the Highly
20 Confidential – Attorneys’ Eyes Only Remediation Plan and Addenda summarize
21 BANA’s implementation of the Plans.
22 For the reasons discussed above, there are compelling reasons to seal
23 discussions of those topics, testimony and documents, as well as others discussed in
24 BANA’s Motion to Exclude and the expert reports appended in support thereof. See
25 supra, pgs. 2-7.
26 III. CONCLUSION
27 For the foregoing reasons and for the reasons set forth in the Court’s Sealing
28 Orders (ECF 365, 381, 390, 391, 397, 421, 431, 460, 466, 467, 477, 498, 507, 516,
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 7
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
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1 531, 532, 547, 548), Plaintiffs’ Motions to Seal (ECF 322, 334, 376, 384, 394, 463),
2 BANA’s prior Motions to Seal (ECF 328, 337, 344, 347, 383, 418, 451, 457, 470,
3 481, 495, 501, 511, 539, 542) and accompanying declarations submitted in support
4 thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which are incorporated herein
5 by reference, BANA respectfully requests that the Court grant Defendant’s Motion
6 to Seal because compelling reasons support sealing of the identified documents or
7 portions thereof. Defendant has lodged a Proposed Order separately with the Court.
8 Dated: October 17, 2025 Respectfully submitted,
9
By: s/ Lindsay E. Hoyle__________________
10
LINDSAY E. HOYLE (pro hac vice)
11 LHoyle@goodwinlaw.com
VALERIE A. HAGGANS (pro hac vice)
12 VHaggans@goodwinlaw.com
GOODWIN PROCTER LLP
13 620 Eighth Avenue
New York, NY 10018
14 Tel: +1 212 813-8800
Fax: +1 212 355-3333
15
SABRINA M. ROSE-SMITH (pro hac vice)
16 SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
17 MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
18 1900 N St. NW
Washington, DC 20036
19 Tel: +1 202 346 4000
Fax: +1 202 346 4444
20
JAMES W. MCGARRY (pro hac vice)
21 JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
22 100 Northern Avenue
Boston, MA 02210
23 Tel.: +1 617 570 1000
Fax: +1 617 523 1231
24
LAURA G. BRYS (SBN 242100)
25 LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
26 601 S Figueroa St., Suite 4100
Los Angeles, CA 90017
27 Tel.: +1 213 426 2500
Fax: +1 617 346 4444
28
GOODWIN PROCTER LLP
ATTORNEYS AT LAW 8
BANA’S MOTION TO SEAL RE EAST CASE NO. 21-MD-02992-GPC-MSB
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35510 Page
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1 YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
2 JONES DAY
100 High Street
3 Boston, MA 02110
Tel.: +1 617 960 3939
4 Fax: +1 617 449 6999
5 JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
6 MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
7 MEYERS NAVE
600 B Street, Suite 1650
8 San Diego, CA 92101
9 Attorneys for Defendant
BANK OF AMERICA, N.A.
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ATTORNEYS AT LAW 9
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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 October 17, 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: October 17, 2025 s/ Lindsay E. Hoyle
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