Court filing
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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Cite this document
“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.Full text
Case 3:21-md-02992-GPC-MSB Document 670 Filed 02/20/26 PageID.58700 Page
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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
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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
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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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