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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. 670)

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MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 670)

Summary

Bank of America, N.A.'s notice and motion to seal portions of documents filed with its reply in support of its motion to exclude the purported expert opinions of Jane Cloninger, 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 02/20/26 as Document 670 (7 pages). The bank seeks to seal portions of one Hoyle Declaration exhibit and references to it in the reply, along with references to exhibits the court already sealed with its original motion. It argues compelling reasons apply because motions to exclude expert testimony may be effectively dispositive of summary judgment, and cites its earlier sealing motions.

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“MOTION to File Documents Under Seal — Bofa Ca Unemployment (Dkt. 670).” Original at ecf.casd.uscourts.gov, No. 3:21-md-02992-GPC-MSB, Doc. 670. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/full-docket-bofa-ca-unemployment-casd-709615/2026-02-20-gov-uscourts-casd-709615-670-0-gov-uscourts-casd-709615-670-0/, SHA-256 b59263911396a58fc1e13995fbdbd2585384e17c4d113ab5df6d17f2da1bbb0e.

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            Case 3:21-md-02992-GPC-MSB            Document 670    Filed 02/20/26   PageID.58700   Page
                                                        1 of 7


                      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
                  19      BENEFITS LITIGATION                    DEFENDANT BANK OF AMERICA,
                                                                 N.A.’S NOTICE AND MOTION TO
                  20                                             SEAL DOCUMENTS FILED IN
                                                                 REPLY IN SUPPORT OF ITS
                  21                                             MOTION TO EXCLUDE THE
                                                                 PURPORTED EXPERT OPINIONS OF
                  22                                             JANE CLONINGER
                  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 CLONINGER REPLY               CASE NO. 3:21-MD-02992-GPC-MSB
            Case 3:21-md-02992-GPC-MSB              Document 670     Filed 02/20/26   PageID.58701     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 (Motion to Seal) portions of certain documents1 in connection with BANA’s
                      4   Reply in Support of its Motion to Exclude the Purported Expert Opinions of Jane
                      5   Cloninger (Cloninger Reply). In particular, BANA seeks to seal portions of one
                      6   Hoyle Declaration Exhibit because compelling reasons support sealing of the
                      7   identified document, as well as any references to that exhibit in the Cloninger Reply
                      8   filed in support. Consistent with the Court’s prior sealing Order finding compelling
                      9   reasons to seal certain exhibits filed with BANA’s Motion to Exclude the Purported
                  10      Expert Opinions of Jane Cloninger (ECF 598), BANA also seeks to seal references
                  11      within the Cloninger Reply to the contents of those already-filed and sealed exhibits.2
                  12            As previously stated in BANA’s motions to seal submitted in connection with
                  13      class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418, 451)
                  14      and BANA’s motions to seal submitted in connection with summary judgment
                  15      briefing (ECF 577, 579, 581, 583, 585, 587), the public’s right to inspect and copy
                  16      judicial records is not absolute, and a party faced with the disclosure of confidential
                  17      or proprietary information may seek to file the documents under seal to avoid
                  18      disclosure of business information that might result in competitive harm or be used
                  19      for improper purposes. See Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598
                  20      (1978) (denying disclosure); Local Civ. R. 79.2(c). A party seeking to seal documents
                  21      filed in connection with a motion to exclude expert testimony must show “compelling
                  22      reasons” to seal, as such motions may be effectively “dispositive of a motion for
                  23
                          1
                            BANA’s Exhibit to the Declaration of Lindsay E. Hoyle in Support of the Cloninger
                  24      Reply (Hoyle Declaration) shall be referred to as “HX” or “Hoyle Declaration
                          Exhibit” in this Motion and the forthcoming Cloninger Reply.
                  25      2
                            BANA incorporates by reference its Motion to File Documents Under Seal (ECF
                  26      577) in connection with its Motion to Exclude the Purported Expert Opinions of Jane
                          Cloninger (Cloninger Motion) (ECF 563) and the Declaration of Lindsay E. Hoyle
                  27      in Support thereof (ECF 563-2), and Plaintiffs’ Motion to File Documents Under Seal
                          (ECF 621) in connection with Plaintiffs’ Opposition to Defendant’s Motion to
                  28      Exclude the Purported Expert Opinions of Jane Cloninger (ECF 623) and the
GOODWIN PROCTER LLP
                          Declaration of Katherine Bass in Support thereof (ECF 623-1).
   ATTORNEYS AT LAW                                                1
                          BANA’S MOT. TO SEAL CLONINGER REPLY                  CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB              Document 670      Filed 02/20/26   PageID.58702     Page
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                      1   summary judgment.” Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597
                      2   (9th Cir. 1996) (noting that Daubert ruling was dispositive); see Rink v. Cheminova,
                      3   Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment
                      4   on grounds that plaintiff failed to prove causation after the plaintiff's expert was
                      5   excluded under Daubert).
                      6         Courts, including this Court, consistently seal documents where—as here—
                      7   disclosure of confidential business information risks competitive harm to the litigant
                      8   or improper use of the information such as to commit fraud. See, e.g., ECF 603; E.W.
                      9   Bank v. Shanker, 2021 WL 3112452, *18-19 (N.D. Cal. July 22, 2021) (finding
                 10       compelling reasons to seal confidential onboarding processes, verification of
                 11       customer identities, and fraud prevention measures); Soria v. U.S. Bank N.A., 2019
                 12       WL 8167925, *4 (C.D. Cal. Apr. 25, 2019) (finding compelling reasons to seal
                 13       internal fraud investigation procedures because there was a “significant danger that
                 14       someone could improperly use this information to commit fraud and avoid
                 15       detection.”). Indeed, this Court largely granted the Parties’ prior motions to seal,
                 16       finding good cause or compelling reasons to seal documents concerning the same
                 17       topics that BANA now seeks to seal, including BANA’s fraud detection and
                 18       prevention policies and strategies and BANA’s handling of unauthorized transaction
                 19       claims, among other topics. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466,
                 20       467, 548, 598, 599, 600, 601, 602, 603 (Sealing Orders). Those prior rulings are
                 21       sufficient grounds alone to grant sealing here. See Lundstrom v. Young, 2022 WL
                 22       15524624, *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel) (considering prior sealing of
                 23       exhibits when granting motion to seal); Workplace Techs. Rsch., Inc. v. Project
                 24       Mgmt. Inst., Inc., 2021 WL 6091272, *3 (S.D. Cal. Oct. 20, 2021) (sealing references
                 25       to document that court already granted sealing of).
                 26             Consistent with this Court’s Sealing Orders, there are compelling reasons to
                 27       seal the confidential documents and testimony at issue here (or references thereto),
                 28       as well as substantive discussions of already sealed exhibits filed in connection with
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 2
                          BANA’S MOT. TO SEAL CLONINGER REPLY                   CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB               Document 670     Filed 02/20/26      PageID.58703   Page
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                      1   Cloninger Motion, because each reflects topics that are likely to cause particularized
                      2   competitive harm to BANA and which could potentially enable future fraud, and thus
                      3   pose a danger to BANA’s business and the public. See, e.g., EWB, 2021 WL
                      4   3112452, *18-19 (finding compelling reasons to seal where public disclosure of
                      5   EWB’s confidential onboarding processes, verification of customer identities and
                      6   fraud prevention measures would “harm [the bank’s] competitive standing”); Soria,
                      7   2019 WL 8167925, *4 (finding compelling reasons to seal bank’s internal procedures
                      8   for investigating fraud because there was a “significant danger that someone could
                      9   improperly use this information to commit fraud and avoid detection”). Each
                 10       document was also properly designated as “Confidential” or “Highly Confidential –
                 11       Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
                 12       Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
                 13       connection with an apex discovery dispute because “information in the exhibits fits
                 14       within ‘confidential information’ in the protective order”).
                 15             Specifically, the excerpted expert testimony (HX 50) that BANA seeks to seal
                 16       includes discussions of BANA’s confidential documents, which pertain to
                 17       confidential topics, including but not limited to: BANA’s handling of unauthorized
                 18       transaction claims and reconsiderations; and BANA’s fraud strategies, including the
                 19       use of EMV chip technology and the freezing and blocking of accounts, which this
                 20       Court has already found compelling reasons to seal. See ECF 365, 381 (finding
                 21       compelling reasons to seal).
                 22             BANA has also provisionally redacted and sealed portions of the Cloninger
                 23       Reply that quote, describe or reflect descriptions of the confidential documents,
                 24       testimony and topics that were previously submitted or described in the Parties’ prior
                 25       briefing and motions to seal submitted in connection with the Cloninger Motion.
                 26       Those confidential topics include BANA’s fraud and claims analyses and strategies
                 27       and BANA’s analyses of its state prepaid unemployment program operations,
                 28       including fraud volume and cardholder complaints, among other topics. This is
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                  3
                          BANA’S MOT. TO SEAL CLONINGER REPLY                  CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB                 Document 670     Filed 02/20/26    PageID.58704    Page
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                      1   consistent with the terms of the Stipulated Protective Order (ECF 82 § 3), with this
                      2   Court’s prior Sealing Orders (ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467,
                      3   548, 598, 599, 600, 601, 602, 603), and with rulings in this Circuit. See, e.g., Darisse
                      4   v. Nest Labs, Inc., 2016 WL 11474174, *2 (N.D. Cal. June 2, 2016) (sealing class
                      5   certification motion and declarations that quote or reference confidential exhibits).
                      6   For the reasons discussed above, there are compelling reasons to seal discussions of
                      7   those topics, testimony and documents discussed in the Parties’ briefing. See supra
                      8   at 3-4.
                      9                                         *      *     *
                 10                 For the foregoing reasons and for the reasons set forth in the Court’s Sealing
                 11       Orders in connection with class certification briefing and argument (ECF 365, 381,
                 12       390, 391, 397, 421, 466, 467, 548), BANA’s Daubert Motions (ECF 598, 599, 600,
                 13       601, 602), BANA’s Motion for Partial Summary Judgment (ECF 603), Plaintiffs’
                 14       Motions to Seal (ECF 376, 384, 394, 463, 475, 524, 527, 569, 572, 609, 615, 618,
                 15       630, 650), BANA’s prior Motions to Seal (ECF 328, 337, 344, 347, 383, 418, 451,
                 16       577, 579, 581, 583, 585, 587) and accompanying declarations submitted in support
                 17       thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which are incorporated herein
                 18       by reference, BANA respectfully requests that the Court grant BANA’s Motion to
                 19       Seal because compelling reasons support sealing thereof.
                 20
                 21
                 22        Dated: February 20, 2026            Respectfully submitted,
                 23                                            By: /s/ Lindsay E. Hoyle
                                                                   LINDSAY E. HOYLE (pro hac vice)
                 24                                                LHoyle@goodwinlaw.com
                 25                                                VALERIE A. HAGGANS (pro hac vice)
                                                                   VHaggans@goodwinlaw.com
                 26                                                GOODWIN PROCTER LLP
                                                                   620 Eighth Avenue
                 27                                                New York, NY 10018
                                                                   Tel: +1 212 813-8800
                 28                                                Fax: +1 212 355-3333
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                   4
                          BANA’S MOT. TO SEAL CLONINGER REPLY                    CASE NO. 3:21-MD-02992-GPC-MSB
           Case 3:21-md-02992-GPC-MSB             Document 670     Filed 02/20/26   PageID.58705   Page
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                      1
                                                                 JAMES W. MCGARRY (pro hac vice)
                      2                                          JMcGarry@goodwinlaw.com
                      3                                          GOODWIN PROCTER LLP
                                                                 100 Northern Avenue
                      4                                          Boston, MA 02210
                                                                 Tel.: +1 617 570 1000
                      5                                          Fax: +1 617 523 1231
                      6                                          SABRINA M. ROSE-SMITH (pro hac vice)
                      7                                          SRoseSmith@goodwinlaw.com
                                                                 MATTHEW L. RIFFEE (pro hac vice)
                      8                                          MRiffee@goodwinlaw.com
                                                                 KEITH LEVENBERG (pro hac vice)
                      9                                          KLevenberg@goodwinlaw.com
                 10                                              GOODWIN PROCTER LLP
                                                                 1900 N Street NW
                 11                                              Washington, DC 20036
                                                                 Tel: +1 202 346 4000
                 12                                              Fax: +1 202 346 4444
                 13                                              LAURA G. BRYS (SBN 242100)
                 14                                              LBrys@goodwinlaw.com
                                                                 GOODWIN PROCTER LLP
                 15                                              601 S. Figueroa St., Suite 4100
                                                                 Los Angeles, CA 90017
                 16                                              Tel.: +1 213 426 2500
                                                                 Fax: +1 617 346 4444
                 17
                 18                                              YVONNE W. CHAN (pro hac vice)
                                                                 YChan@jonesday.com
                 19                                              JONES DAY
                                                                 100 High Street
                 20                                              Boston, MA 02110
                                                                 Tel.: +1 617 960 3939
                 21                                              Fax: +1 617 449 6999
                 22
                                                                 JANICE P. BROWN (SBN 114433)
                 23                                              jbrown@myersnave.com
                                                                 MATTHEW B. NAZARETH (SBN 278405)
                 24                                              mnazareth@myersnave.com
                                                                 MEYERS NAVE
                 25                                              600 B Street, Suite 1650
                 26                                              San Diego, CA 92101

                 27                                              Attorneys for Defendant
                                                                 BANK OF AMERICA, N.A.
                 28
GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                5
                          BANA’S MOT. TO SEAL CLONINGER REPLY                CASE NO. 3:21-MD-02992-GPC-MSB
            Case 3:21-md-02992-GPC-MSB             Document 670     Filed 02/20/26   PageID.58706     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 20, 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 20, 2026                            /s/ Lindsay E. Hoyle
                  10                                                          LINDSAY E. HOYLE
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GOODWIN PROCTER LLP
   ATTORNEYS AT LAW                                                 6
                          BANA’S MOT. TO SEAL CLONINGER REPLY                 CASE NO. 3:21-MD-02992-GPC-MSB


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