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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. 657)

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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 657)

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Bank of America, N.A.'s motion to seal documents filed with its opposition to the plaintiffs' Daubert motion to exclude certain testimony of Victor Stango, 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 02/05/26 as Document 657 (8 pages). The bank seeks to seal certain exhibits to the Hoyle Declaration and references to them in its opposition, noting that exhibits HX 41 and 42 were already sealed in connection with its motion to exclude the plaintiffs' expert Greg J. Regan. It argues that compelling reasons apply to papers on motions to exclude expert testimony and that the court's earlier sealing orders support sealing the same material.

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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 657).” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 657. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2026-02-05-gov-uscourts-casd-709615-657-0-gov-uscourts-casd-709615-657-0/, SHA-256 0f32977a2ca02ed704e08aea4f4a435faef8ba1e47382aa3717527c838625537.

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            Case 3:21-md-02992-GPC-MSB             Document 657    Filed 02/05/26   PageID.55774   Page
                                                         1 of 8


                      1   JAMES W. MCGARRY (pro hac vice)
                          JMcGarry@goodwinlaw.com
                      2   GOODWIN PROCTER LLP
                      3   100 Northern Avenue
                          Boston, MA 02210
                      4   Tel.: +1 617 570 1000
                          Fax: +1 617 523 1231
                      5
                          SABRINA M. ROSE-SMITH (pro hac vice)
                      6   SRoseSmith@goodwinlaw.com
                      7   MATTHEW L. RIFFEE (pro hac vice)
                          MRiffee@goodwinlaw.com
                      8   GOODWIN PROCTER LLP
                          1900 N Street, NW
                      9   Washington, DC 20036
                  10      Tel.: +1 202 346 4000
                          Fax: +1 202 346 4444
                  11
                          Attorneys for Defendant
                  12      BANK OF AMERICA, N.A.
                  13      [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
                  14
                                              UNITED STATES DISTRICT COURT
                  15
                                      FOR THE SOUTHERN DISTRICT OF CALIFORNIA
                  16
                                                      SAN DIEGO DIVISION
                  17
                  18      IN RE: BANK OF AMERICA                  Case No. 21-MD-02992-GPC-MSB
                          CALIFORNIA UNEMPLOYMENT                 DEFENDANT BANK OF AMERICA,
                  19      BENEFITS LITIGATION                     N.A.’S MOTION TO SEAL
                  20                                              DOCUMENTS FILED IN
                                                                  OPPOSITION TO PLAINTIFFS’
                  21                                              DAUBERT MOTION TO EXCLUDE
                                                                  CERTAIN TESTIMONY OF VICTOR
                  22                                              STANGO
                  23
                                                                  Ctrm:      12A – 12th Floor
                  24                                              Judge:     Hon. Gonzalo P. Curiel
                  25
                  26
                  27
                  28
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW

                          BANA’S MOT. TO SEAL STANGO OPP.                    CASE NO. 3:21-MD-02992-GPC-MSB
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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 Notice
                      3   and Motion to Seal (Motion) certain documents and portions of other documents 1 in
                      4   connection with BANA’s Opposition (Opposition) to Plaintiffs’ Daubert Motion to
                      5   Exclude Certain Testimony of Victor Stango. In particular, BANA seeks to seal
                      6   certain Hoyle Declaration Exhibits 2 (in whole or in part) because compelling reasons
                      7   supports sealing of the identified documents or portions thereof, as well as any
                      8   references to those exhibits in BANA’s Opposition and the Hoyle Declaration filed
                      9   in support. Consistent with the Court’s prior sealing orders finding compelling
                  10      reasons to seal certain exhibits filed with BANA’s Daubert Motions (ECF 598, 599,
                  11      600, 601, 602) and BANA’s Motion for Partial Summary Judgment (ECF 603),
                  12      BANA also seeks to seal references within its Opposition and the Hoyle Declaration
                  13      to the contents of those already-filed and sealed exhibits or portions thereof.3
                  14            As previously stated in BANA’s motions to seal submitted in connection with
                  15      class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418, 451)
                  16      and BANA’s motions to seal submitted in connection with summary judgment
                  17      briefing (ECF 577, 579, 581, 583, 585, 587), the public’s right to inspect and copy
                  18      judicial records is not absolute, and a party faced with the disclosure of confidential
                  19      or proprietary information may seek to file the documents under seal to avoid
                  20      disclosure of business information that might result in competitive harm or be used
                  21      for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
                  22
                  23      1
                             Defendants’ Exhibits to the Declaration of Lindsay E. Hoyle in Support of the
                          Opposition to Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor
                  24      Stango shall be referred to as “HX” in this Motion and the forthcoming Opposition
                          and supporting documents. Plaintiffs’ Exhibits to the Declaration of James Baltzer in
                  25      Support of Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor
                          Stango  shall be referred to as “BX” in this Opposition and supporting documents.
                  26      2
                             Exhibits HX 41 and 42 were previously sealed by this Court (ECF 602) in
                          connection with BANA’s Motion to Exclude the Purported Expert Opinions of Greg
                  27      J. Regan (ECF 567). BANA refiles these exhibits as a courtesy for the Court.
                          3
                            BANA incorporates by reference Plaintiffs’ Motion to File Documents Under Seal
                  28      (ECF 618) in connection with Plaintiffs’ Daubert Motion to Exclude Certain
GOODWIN PROCTER LLP
                          Testimony of Victor Stango (Stango Motion, ECF 569).
   ATTORNEYS AT LAW                                                  1
                          BANA’S MOT. TO SEAL STANGO OPP.                      CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB              Document 657      Filed 02/05/26   PageID.55776     Page
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                      1   (1978) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal documents
                      2   filed in connection with a motion to exclude expert testimony must show “compelling
                      3   reasons” to seal, as such motions may be effectively “dispositive of a motion for
                      4   summary judgment.” Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597
                      5   (9th Cir. 1996) (noting that Daubert ruling was dispositive); see Rink v. Cheminova,
                      6   Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment
                      7   on grounds that plaintiff failed to prove causation after the plaintiff's expert was
                      8   excluded under Daubert).
                      9         Courts, including this Court, consistently seal documents where—as here—
                 10       disclosure of confidential business information risks competitive harm to the litigant
                 11       or improper use of the information such as to commit fraud. ECF 603; see e.g., E.W.
                 12       Bank v. Shanker, 2021 WL 3112452, *18-19 (N.D. Cal. July 22, 2021) (finding
                 13       compelling reasons to seal confidential onboarding processes, verification of
                 14       customer identities, and fraud prevention measures); Soria v. U.S. Bank N.A., 2019
                 15       WL 8167925, *4 (C.D. Cal. Apr. 25, 2019) (finding compelling reasons to seal
                 16       internal fraud investigation procedures because there was a “significant danger that
                 17       someone could improperly use this information to commit fraud and avoid
                 18       detection.”). Indeed, this Court largely granted the Parties’ prior motions to seal,
                 19       finding good cause or compelling reasons to seal documents concerning the same
                 20       topics that BANA now seeks to seal, including but not limited to, BANA’s fraud
                 21       detection and prevention strategies and policies, BANA’s claim review and
                 22       compensation policies, and BANA’s implementation of the Remediation Plan and
                 23       Addenda. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599,
                 24       600, 601, 602, 603, 638, 639, 641, 642 (Sealing Orders). Those prior rulings are
                 25       sufficient grounds alone to grant sealing here. See Lundstrom v. Young, 2022 WL
                 26       15524624, *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel) (considering prior sealing of
                 27       exhibits when granting motion to seal); Workplace Techs. Rsch., Inc. v. Project
                 28       Mgmt. Inst., Inc., 2021 WL 6091272, *3 (S.D. Cal. Oct. 20, 2021) (sealing references
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 2
                          BANA’S MOT. TO SEAL STANGO OPP.                      CASE NO. 3:21-MD-02992-GPC-MSB
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                      1   to document that court already granted sealing of).
                      2         Consistent with this Court’s Sealing Orders, there are compelling reasons to
                      3   seal the confidential documents and testimony at issue here (or references thereto),
                      4   as well as substantive discussions of already sealed exhibits filed in connection the
                      5   Stango Motion, because each document reflects topics that are likely to cause
                      6   particularized competitive harm to BANA and which could potentially enable future
                      7   fraud, and thus pose a danger to BANA’s business and the public. See, e.g., Soria,
                      8   2019 WL 8167925, *4 (finding compelling reasons to seal bank’s internal procedures
                      9   for investigating fraud because there was a “significant danger that someone could
                 10       improperly use this information to commit fraud and avoid detection”). Each
                 11       document was also properly designated as “Confidential” or “Highly Confidential –
                 12       Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
                 13       Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
                 14       connection with an apex discovery dispute because “information in the exhibits fits
                 15       within ‘confidential information’ in the protective order”).
                 16             Specifically, the Confidential documents and testimony that BANA seeks to
                 17       seal include, but are not limited to, the following categories of documents and
                 18       information, for which this Court has already found compelling reasons to seal:
                 19             •      HX 41, HX 41.A, HX 48, and HX 49 reflect confidential BANA fraud
                 20                    detection and prevention strategies and policies, including the Claim
                 21                    Fraud Filter, and other current and former fraud strategies that could be
                 22                    misused by fraudsters to perpetrate future fraud or could be used by
                 23                    another financial institution to BANA’s competitive disadvantage (see
                 24                    Amended Sealing Order (ECF 365) at 5-6, 12; Sealing Order (ECF 598,
                 25                    599, 600, 601, 602, 603));
                 26             •      HX 41, HX 41.A, HX 48, and HX 49 reflect confidential BANA
                 27                    documents pertaining to BANA’s Remediation Plan and Addenda with
                 28                    the Office of the Comptroller of the Currency (OCC) and the Consumer
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                  3
                          BANA’S MOT. TO SEAL STANGO OPP.                       CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB              Document 657      Filed 02/05/26   PageID.55778     Page
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                      1                Financial Protection Bureau (CFPB)—which were designated Highly
                      2                Confidential – Attorneys’ Eyes Only at those regulators’ requests—
                      3                which this Court has found compelling reasons to seal (see Amended
                      4                Sealing Order (ECF 365) at 14–16; Sealing Orders (ECF 598, 599, 600,
                      5                601, 602, 603));
                      6         •      HX 42 reflects BANA’s interrogatory responses and data provided
                      7                therein reflecting any reconsideration by BANA of those claims and any
                      8                compensation paid as a result (see ECF 365 at 5-9, 12 (finding
                      9                compelling reasons to seal); Sealing Orders (ECF 602, 603)); and
                 10             •      HX 41, HX 41.A, HX 48, and HX 49 reflect expert reports and excerpts
                 11                    of experts’ deposition testimony, which include discussions of BANA’s
                 12                    confidential documents, many of which contain the confidential
                 13                    information described above, including but not limited to: BANA’s
                 14                    handling of unauthorized transaction claims and reconsiderations. This
                 15                    information could be misused by fraudsters to perpetrate future fraud or
                 16                    could be used by another financial institution to BANA’s competitive
                 17                    disadvantage (see Amended Sealing Order (ECF 365) at 5-9, 12; Sealing
                 18                    Orders (ECF 598, 599, 601, 602, 603)).
                 19             BANA has also provisionally redacted and sealed portions of the Opposition
                 20       and Hoyle Declaration that quote, describe or reflect descriptions of the confidential
                 21       documents, testimony and topics identified above, for which the Parties have
                 22       previously sought to seal in connection with BANA’s summary judgment briefings
                 23       (ECF 577, 579, 581, 583, 585, 587) and the Stango Motion (ECF 569). These
                 24       provisional redactions and seals are consistent with the terms of the Stipulated
                 25       Protective Order (ECF 82, § 3), with this Court’s prior Sealing Orders (ECF 266,
                 26       293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599, 600, 601, 602, 603), and
                 27       with rulings in this Circuit. See, e.g., Darisse v. Nest Labs, Inc., 2016 WL 11474174,
                 28       at *2 (N.D. Cal. June 2, 2016) (sealing class certification motion and declarations
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 4
                          BANA’S MOT. TO SEAL STANGO OPP.                      CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB              Document 657      Filed 02/05/26   PageID.55779     Page
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                      1   that quote or reference confidential exhibits). For the reasons discussed above, there
                      2   are compelling reasons to seal quotes from and discussions of those topics, testimony
                      3   and documents discussed in the Parties’ briefing. See supra at 3-4.
                      4                                      *      *     *
                      5         For the foregoing reasons and for the reasons set forth in the Court’s Sealing
                      6   Orders in connection with class certification briefing and argument (ECF 365, 381,
                      7   390, 391, 397, 421, 466, 467, 548), the Court’s Sealing Orders in connection with
                      8   BANA’s Daubert Motions (ECF 598, 599, 600, 601, 602), the Court’s Sealing Orders
                      9   in connection with BANA’s Motion for Partial Summary Judgment (ECF 603),
                 10       Plaintiffs’ Motions to Seal (ECF Nos. 376, 384, 394, 463, 475, 524, 527, 569, 572,
                 11       609, 615, 618), BANA’s prior Motions to Seal (ECF Nos. 328, 337, 344, 347, 383,
                 12       418, 451, 577, 579, 581, 583, 585, 587) and accompanying declarations submitted in
                 13       support thereof (ECF Nos. 344-1, 344-2, 344-3, 347-1, 347-2), all of which are
                 14       incorporated herein by reference, BANA respectfully requests that the Court grant
                 15       Defendant’s Motion to Seal Documents Filed in Support of its Opposition to
                 16       Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor Stango because
                 17       compelling reasons support sealing thereof.
                 18
                 19        Dated: February 5, 2026          Respectfully submitted,
                 20                                         By: s/ Lindsay E. Hoyle
                                                                LINDSAY E. HOYLE (pro hac vice)
                 21                                             LHoyle@goodwinlaw.com
                 22                                             VALERIE A. HAGGANS (pro hac vice)
                                                                VHaggans@goodwinlaw.com
                 23                                             GOODWIN PROCTER LLP
                                                                620 Eighth Avenue
                 24                                             New York, NY 10018
                                                                Tel: +1 212 813-8800
                 25                                             Fax: +1 212 355-3333
                 26
                                                                  JAMES W. MCGARRY (pro hac vice)
                 27                                               JMcGarry@goodwinlaw.com
                                                                  GOODWIN PROCTER LLP
                 28                                               100 Northern Avenue
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 5
                          BANA’S MOT. TO SEAL STANGO OPP.                      CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB              Document 657     Filed 02/05/26   PageID.55780   Page
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                      1                                           Boston, MA 02210
                                                                  Tel.: +1 617 570 1000
                      2                                           Fax: +1 617 523 1231
                      3
                                                                  SABRINA M. ROSE-SMITH (pro hac vice)
                      4                                           SRoseSmith@goodwinlaw.com
                                                                  MATTHEW L. RIFFEE (pro hac vice)
                      5                                           MRiffee@goodwinlaw.com
                                                                  KEITH LEVENBERG (pro hac vice)
                      6                                           KLevenberg@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                                               LAURA G. BRYS (SBN 242100)
                 11                                               LBrys@goodwinlaw.com
                                                                  GOODWIN PROCTER LLP
                 12                                               601 S. Figueroa St., Suite 4100
                                                                  Los Angeles, CA 90017
                 13                                               Tel.: +1 213 426 2500
                 14                                               Fax: +1 617 346 4444

                 15                                               YVONNE W. CHAN (pro hac vice)
                                                                  YChan@jonesday.com
                 16                                               JONES DAY
                                                                  100 High Street
                 17                                               Boston, MA 02110
                 18                                               Tel.: +1 617 960 3939
                                                                  Fax: +1 617 449 6999
                 19
                                                                  JANICE P. BROWN (SBN 114433)
                 20                                               jbrown@myersnave.com
                                                                  MATTHEW B. NAZARETH (SBN 278405)
                 21                                               mnazareth@myersnave.com
                 22                                               MEYERS NAVE
                                                                  600 B Street, Suite 1650
                 23                                               San Diego, CA 92101
                 24                                               Attorneys for Defendant
                                                                  BANK OF AMERICA, N.A.
                 25
                 26
                 27
                 28
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 6
                          BANA’S MOT. TO SEAL STANGO OPP.                     CASE NO. 3:21-MD-02992-GPC-MSB
            Case 3:21-md-02992-GPC-MSB             Document 657     Filed 02/05/26   PageID.55781     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 February 5, 2026. 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    Dated: February 5, 2026                             s/ Lindsay E. Hoyle
                  10                                                          LINDSAY E. HOYLE
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GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 7
                          BANA’S MOT. TO SEAL STANGO OPP.                     CASE NO. 3:21-MD-02992-GPC-MSB


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