Court filing
Response to Additional Statement of Facts — Bofa Ca Unemployment (Dkt. 693.2)
Filed February 20, 2026 in Bofa Ca Unemployment; one of 1415 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of California |
|---|---|
| Filed | 2026-02-20 |
U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 693-2 · 2026-02-20 · Docket on CourtListener
Full text
BANA’S RESP. TO PLS.’ ADD’L STMT. OF FACTS
CASE NO. 21-MD-02992-GPC-MSB
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street, NW
Washington, DC 20036
Tel.: +1 202 346 4000
Fax: +1 202 346 4444
Attorneys for Defendant
BANK OF AMERICA, N.A.
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
UNITED STATED DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 21-MD-02992-GPC-MSB
DEFENDANT BANK OF
AMERICA, N.A.’S RESPONSE TO
PLAINTIFFS’ ADDITIONAL
STATEMENT OF FACTS IN
OPPOSITION TO MOTION FOR
PARTIAL SUMMARY JUDGMENT
FILED PROVISIONALLY UNDER SEAL
PURSUANT TO STIPULATED PROTECTIVE
ORDER
Case 3:21-md-02992-GPC-MSB Document 693-2 Filed 02/20/26 PageID.59451
Page 1 of 58
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BANA’S RESP. TO PLS.’ ADD’L STMT. OF FACTS
CASE NO. 21-MD-02992-GPC-MSB
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
As a threshold matter, Plaintiffs’ Statement of Additional Facts (AF) (ECF
652-2) should be stricken or ignored. The 28-page AF was submitted in violation of
the Court’s explicit rules regarding factual statements (requiring separate statements
in a two-column format limited to 15 pages) and ECF 560 (in which the parties
stipulated to a 50-page separate statement limit).1 Plaintiffs requested neither a
stipulation from BANA2 nor leave of Court for an exception. The Court should not
allow this brazen end-run around the Court’s rules or the page limitations negotiated
by the parties and ordered by the Court. Nor should the Court countenance Plaintiffs’
attempt to disguise argument—which the Court’s standing order explicitly states
must be reserved for opposition briefs—as “additional facts.” The AF is littered with
argument, unsupported speculation, and mischaracterizations of evidence. None of
that is proper. See Curiel Standing Order (limiting statements to “plainly and
concisely” stated facts, and stating that “[t]he parties should avoid using the separate
statements as a means of presenting or repeating legal arguments that are or should
be made in the memorandum of points and authorities in opposition to the motion for
summary judgment”). Accordingly, the AF should not be considered in connection
with BANA’s Motion for Partial Summary Judgment (ECF 589), and the Court
should limit its consideration to any responses or purported rebuttals included in
Plaintiffs’ Response to BANA’s Undisputed Material Facts (ECF 652-1).
However, if the Court were to consider the AF (and it should not), BANA
submits the below response (RAF).3
///
///
1 Per the Court’s standing order, BANA converted Plaintiffs’ improperly formatted
AF to two equal columns. As converted, the AF exceeds 50 pages.
2 All abbreviations have the same meaning as defined in BANA’s Memorandum ISO
Mot. for Partial Summary Judgment (MSJ) (ECF 589-1).
3 DX 1-184 are exhibits to the Decl. of Laura G. Brys ISO BANA’s Mot. for Partial
Summary Judgment (ECF 591). RJN 1-22 are exhibits to the Decl. of Laura G. Brys
ISO BANA’s Request for Judicial Notice (RJN) (ECF 590-1). DX 185-192 are
exhibits to the Decl. of Laura G. Brys ISO Reply.
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PLAINTIFFS' ADDITIONAL
STATEMENT OF FACTS
BANA'S RESPONSE
A.
THE BANK PERFORMED A GOVERNMENTAL FUNCTION AND
ENGAGED IN JOINT ACTION WITH EDD4
1. The California Employment
Development Department ("EDD")
administers the issuance of
unemployment insurance ("UI"),
disability benefits, and other public
benefits ( collectively, "EDD benefits") in
California. From 2010 to 2024, EDD
delegated to Bank of America (the
"Bank") the authority to administer the
distribution ofUI and other EDD benefits
to beneficiaries in California via
electronic payment services.
PX 33; PX 34.
2. From 2010 until 2024, the Bank had
the exclusive contractual right and duty
to provide electronic benefits payment
services for EDD. During that time, EDD
beneficiaries did not have the option of
receiving electronic benefits payments
("EBP") via direct deposit into their own
personal banking account, nor did they
have the option of receiving EBP via a
debit card issued by any other bank or
financial institution other than Bank of
America.
PX 13 (Chestnut) 75:4-13; PX 33 at 16;
PX 34; PX 35 at -187054, 187057.
3. In 2020 and 2021, EDD's website
presented Bank-issued debit cards as the
exclusive means to receive EDD
payments, and both EDD and the Bank
promoted the benefits of receiving EDD
benefits via a Bank-issued debit card.
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibits do not support
the statement that EDD "delegated to
[BANA] the authority to administer the
distribution ofUI and other EDD
benefits to beneficiaries in California via
electronic payment services." Further,
the undisputed evidence shows that EDD
administers federal and state UI benefits
in California, and that, pursuant to the
contract between BANA and EDD,
BANA distributes those benefits. SUF ,r
1.
Immaterial. For the reasons explained in
BANA's MSJ and Reply in Support
(Reply), this purported fact is not
material to the issues raised in BANA' s
MSJ. Further, undisputed evidence
shows that EDD also made benefits
available via paper check, and that EDD
benefits recipients had the option to
receive their benefits via paper check
instead of via a prepaid card. SUF ,r,r 2-
3.
U nsupported/Mischaracterizes &
Immaterial. BANA offered prepaid debit
cards, not debit cards, and Plaintiffs'
cited exhibits do not support that BANA
"promoted the benefits of receiving
EDD benefits via a Bank-issued debit
card." Further, for the reasons explained
4 BANA does not respond to the headings in the AF, which cannot raise a material
dispute as they do not purport to state material facts and contain argument only.
2
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
CASE No. 21-MD-02992-GPC-MSB
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PX 36; PX 37; PX 38.
4. The Bank's prepaid debit card was the
default method of receiving EDD
benefits. Requesting payment by check
required affirmatively contacting EDD to
make that request, and that option was
neither well publicized nor easily
accessed. As a result, the vast majority
of EDD benefits recipients
received benefits by debit card.
PX 39 at -153670; PX 13 (Chestnut)
136:2-21 ; PX 40 (Rivera) 61:2-6; PX 41
(McClure) 81:16-20.
in BANA' s MSJ and Reply, this
purported fact is not material to the
issues raised in BANA' s MSJ. See also
RAF if 2.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 2.
5. Under the EDD-Bank Contract, Bank-
Unsupported/Mischaracterizes. BANA
issued debit cards and associated
issued prepaid debit cards, not debit
accounts could receive deposits only
cards. See, e.g., SUF ,r,r 2-5 ·
from the EDD, not from any other
source.
PX 33 at 233.
6. The EDD-Bank Contract required the
Bank to work jointly with EDD in
identifying and investigating potential
benefits enrollment fraud. The Bank
contractually agreed, "Upon detection of
suspicious circumstances ( such as
recipient spending time in prison), the
fraud team will flag the account for
further review. Our fraud team will
contact EDD's Investigation Division to
alert you of the possibility of benefits
enrollment fraud and allow you to
conduct further investigation."
PX 33 at 253.
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibit does not support
the statement that "[t]he EDD-Bank
Contract required the Bank to work
jointly with EDD in identifying and
investigating potential benefits
enrollment fraud." Further, the
undis uted evidence shows tha
7. The Bank promised, in the EDD-Bank Incomplete/Document Speaks for Itself.
Contract, to en a e in efforts with EDD
BANA's a reement with EDD s eaks
3
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
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ATTORNEYS AT LAW
to"[ c ]ombat[] fraud with proactive
initiatives and ongoing communication,"
including quarterly and bi-weekly
meetings with EDD. EDD required the
Bank to provide personnel "to work with
.. . EDD ... to assist in [fraud]
investigation, detection, deterrence and
prevention activity," and to "cooperate
with the EDD' s Investigation Division
and/or its contractors with regard to fraud
investigations to the extent permissible
by law."
PX 33 at 8, 251-52.
8. During 2020-2021, the Bank and EDD
were engaged in an ongoing and jointly
undertaken process to detect suspected
benefits enrollment fraud, freeze
accounts, and require re-verification as a
condition of regaining access to benefits.
PX 42; PX 29 (EDD) 50:21-54:20; PX
13 (Chestnut) 105:9-21, 146:17-25; PX
20 (Garfield) 46:2-6, 47:16-48:2; PX 15
(Letson) 79:5-80:18; PX 280 at -169161
[sic]; PX 281 at -71120.
9. In September 2020
Bank rovided EDD
PX 43 at -452826; PX 15 (Letson)
118:2-125:23, 130:5-132:5; PX 22 (Fox)
36:8-25; PX 44 at -421427; PX 42 at -
71233.
10. On September 28, 2020 and the
following days, the Bank used its CFF to
make benefits enrollment determinations
and to freeze a roximatel
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
for itself and is the best evidence of its
content and terms. See also SUF ,r,r 6-9.
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibits do not support
that BANA and EDD "jointly
under[ took]" the process of re-verifying
accounts. Further, the undis uted
evidence shows tha
SUF ,r,r 6-9, 118.
U nsupported/Mischaracterizes &
Incomplete. Plaintiffs' cited exhibits do
not sup2ort the statement. BANA did not
provide
prior to
impleme t t
; ther, it
rovided
ee
; X 1
,
at -6223-24; SUF ,r,r
63, 65-67, 120; RJN 12 at 23-27.
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibits do not support
the statement that BANA used the CFF
to make benefits enrollment
4
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GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
prepaid UI accounts. The Bank later
unfroze most of those account~
_
, but only after first clawmg
backany previously paid credits.
PX 13 (Chestnut) 107:10-110:10,
110:14-113:17, 114:24-115:13, 116:21-
118:22; PX 45 at -71588; PX 46 at -
705534; PX 47 at -139424
11. From December 3, 2020 to March 17,
2021, the Bank resumed using CFF-1 to
make benefits enrollment fraud
determinations and automatically froze
the account of any EDD cardholder who
submitted a claim that triggered CFF-1.
determinations or that BANA unfroze
accounts only after first clawin-ack
any previously paid credits for
accounts. Undis uted evidence s ows
that
'
'
188 113:25-114:8.
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibits do not support
that BANA used the CFF to make
benefits enrollment determinations.
Undis uted evidence shows tha
PX 14 (Martin) 223:23-224:4; PX 266 at 10.
-1 59383.
12. On or about December 17, 2020, the
Bank used CFF-1 to make benefits
enrollment fraud determinations and
froze the account of any EDD cardholder
who had submitted a claim between
October 4, 2020 and December 2, 2020
that tri
ered CFF-1
PX 48 at -77224; PX 14 (Martin) 221: 1-
224 :4; PX 20 (Garfield) at 342:22-343:9;
PX 266 at -159383· PX 277
13. EDD and the Bank engaged in an
ongoing and jointly undertaken process
of requiring cardholders whose accounts
the Bank froze based on CFF-1 to re-
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported/Contains Legal Argument.
Plaintiffs' cited exhibits do not support
that BANA used the CFF to make
benefits enrollment determinations.
Undis uted evidence shows tha
. ee
; see a so i .
10-11. Further, the second sentence of
this paragraph consists of a legal
conclusion and argument, not fact.
Plaintiffs' cited exhibits do not su
thatBANA
Incomplete. Undisputed that cardholders
whose accounts were frozen based on
the CFF were referred to EDD to re-
ven
their eli ibili
for UI benefits
5
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verify their eligibility with EDD as a
condition of regaining access to their
EDD benefits.
");
.
,
.
,
3
(Chestnut) 146: 17-25; DX 5 if5; PX 14
(Martin) 226:17-227:18, 232:2-12,
235:15-24; PX 16 (Golden) 149:10-21.
14. The EDD-Bank Contract had a
revenue-sharing agreement providing for
a 50-50 split between the Bank and EDD
on all "float revenue"
, creatmg a re ationship
o mancia mter ependency between
EDD and the Bank. The Bank also
retained-of "interchange fees" and
cardholder"Tees generated by the EDD
prepaid card program.
PX 33 at Attachment Vl.l; RSUF 19;
PX 13 (Chestnut) 45:25-47:23, 166:24-
167:23, 169:1-170:13; PX 20 (Garfield)
138:2-21; PX 5 (Regan Rpt) ifif61-62 &
Schedule 2.
during certain periods. See SUF ,r,r 116-
117. But the evidence does not support
that EDD cardholders were required to
do so in all instances. See, e.g., id. ,r 126.
U nsupported/Mischaracterizes &
Contains Legal Argument. This
paragraph consists of argument, not fact.
Plaintiffs' cited exhibits also do not
support that the revenue-sharing
agreement between BANA and EDD
"creat[ ed] a relationship of financial
interdependency between EDD and
[BANA ]" or that BANA was fmancially
dependent upon EDD in any way.
Further, the undisputed evidence shows
that BANA operated its UI benefits
prepaid debit card program-.
See SUP ,r,r 21-22. This AF"'aiso"taiis"o
the extent it is premised on opinions
from a purported expert that should be
excluded. See ECF 567-1.
B.
THE BANK OWED A FIDUCIARY DUTY TO EDD CARDHOLDERS,
WHOM THE BANK KNEW WERE PARTICULARLY VULNERABLE
15. The EDD-Bank Contract expressly
required the Bank to maintain one or
multiple "trust account[ s ]" with "funds
held 'in trust"' "for the cardholders."
DX 39 at -2518.
16. UI recipients are a highly vulnerable
and financially precarious group. UI is a
critical safety net program provided by
the government to ensure that individuals
who lose their job can afford food, health
care, transportation, housing, and other
life necessities. The typical UI recipient
does not have enou h savin s to cover
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Incomplete/Document Speaks for Itself.
BANA's agreement with EDD speaks
for itself and is the best evidence of its
content and terms. See also SUF ,r 20
( trust account to be used to calculate
EDD revenue share).
U nsupported/Mischaracterizes &
Contains Legal Argument. This
paragraph consists of argument, not fact.
Plaintiffs cited exhibit also does not
support that "[t]he typical UI recipient
does not have enough savings to cover
their essential expenses during
unem lo
ent and relies on UI benefits
6
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ATTORNEYS AT LAW
their essential expenses during
unemployment and relies on UI benefits
to pay for their daily living expenses.
PX 7 (East Rpt) ifif8-9, 11-15.
PX 15 (Letson) 100: 13-22; PX 13
(Chestnut 128:14-129:15· PX 50 at-
153421 '
to pay for their daily living expenses,"
and is premised on opinions from a
purported expert that should be
excluded. See ECF 565-1.
U nsupported/Mischaracterizes &
Contains Legal Argument. This
paragraph consists of argument, not fact.
Plaintiffs' cited exhibits (which consist
primarily of call recordings representing
individual peoples' experiences) also do
not support the conclusions drawn about
all or most EDD cardholders.
Objection. PX 51, PX 52, PX 53, PX 54,
and PX 55 purport to be transcriptions of
audio files prepared by Plaintiffs'
counsel. They are inadmissible pursuant
to the best evidence rule which requires
"an original writing, recording, or
photograph" "to prove its content." Fed.
R. Civ. P. 1002. The transcripts are also
unreliable and contain errors and
improper editorialization. See, e . . PX
54 incorrectly transcribin
• rather than
emphasis ad e ; PX 51
example of inappropriate
editorialization); see also RAF ,r 82.
C. THE BANK KNEW ITS CFF-1 CLAIM DENIAL AND CREDIT
RESCISSION POLICIES WERE INCONSISTENT WITH ITS REG E
OBLIGATIONS AND WOULD ERRONEOUSLY DENY VALID CLAIMS
18.
, under the EDD-
Unsupported/Contains Legal Argument.
Ba
Contract, t e Caraholder
This paragraph consists of argument, not
Agreement, and EFTA and Reg E, it was facts, concerning what contracts, EFTA,
required to reimburse EDD cardholders
and Reg E require. Further responding,
for any unauthorized transactions on their BANA's agreements with EDD and with
EDD debit card, including unauthorized
cardholders speak for themselves and are
ATM transactions. Under the EDD-Bank the best evidence of their contents.
Contract, the Bank promised EDD it
BANA otherwise does not dispute that it
would (i) follow "[a]ll Regulation E
had an understanding of what its
requirements and timelines" for resolving obligations were pursuant to its
"dispute claims by a claimant" and (ii)
agreement with EDD, the Cardholder
offer Cardholders "Zero Liability" for
Agreement, and EFTA and Reg E. For
"unauthorized use of debit cards or debit
reasons stated in its MSJ and Reply,
card accounts," "including A TM and
BANA did not knowingly or
intentionall violate those obli ations.
7
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
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pinned POS [point of sale] transactions."
See also, e.g. , SUF ,r,r 46-114.
PX33 at 8,175, 199; PX34at -518187;
PX 13 (Chestnut) 88:9-14; PX 56 §§ 10-
11.
it was required
to investigate EDD car olders' claims
and to provide cardholders with
provisional credit within 10 business
days of claim submission if the Bank
could not complete its investigation and
make a final decision within that time.
any provisional
ere 1t pa1 on an
or ATM/combo
claim was to be made a permanent credit
on the 45th day after claim submission,
unless the Bank had determined based on
a reasonable and good faith investigation
that the cardholder had in fact authorized
the transaction.
PX 33 at 8, 199 ("Per Regulation E,
within 10 business days of the initial
dispute, we will promptly correct the
error."), 232, 235, 253; PX 27 (Montag)
128: 18-22; PX 20 (Garfield) at 86:24-
87: l 7; PX 57 at-167414; PX 24
(Ehresman) 34:8-35:18; PX 18 (Johnson)
8:18-24; PX 12 (Daniels) 31:17-32:10,
199: 10-200: 13.
20. Before implementing its CFF-1
policies on September 28, 2020, the
Bank's standard ractice had always been
pay or eny ec1s10n or to issue
provisional credit within 10 business
d
f claim submission. The Bank's
were consistent with industry
ds and reflected the Bank's
understandin of
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported/Contains Legal Argument.
This paragraph consists of argument, not
facts, concerning what EFT A and Reg E
require. BANA does not dispute that it
had an understanding of what its
obligations were pursuant to EFTA and
Reg E. For reasons stated in its MSJ and
Reply, BANA did not knowingly or
intentionally violate those obligations.
See also, e.g. , SUF ,r,r 46-114.
U nsupported/Mischaracterizes &
Incomplete. U~at BANA's
general policy- prior to
September 28, 2020 was to pay or
decision a claim or to issue provisional
credit within 10 business days of claim
submission. Incomplete and
mischaracterizes, as BANA witnesses
testified that
8
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15
16
17
PX 12 (Daniels) 123:7-21, 124:24-125:6,
133:16-134:11, 135:21-136:10; PX 58 at
-1312 (AISOP); PX 59 at-4543; PX 60;
PX 24 (Ehresman) 17:8-19:12; PX 1
(Kreis Rpt) ,r,r27-41.
21. To ensure that the Bank's claims
analysts would review all relevant
records,
PX 12 (Daniels) 120:16-121:1, 122:24-
123:6, 147:16-150:11.
PX 59 at -4539, -4549; PX 12 (Daniels)
137:9-25, 147:21-151:20; PX 1 (Kreis
Rpt) ifif3 l-36.
18
23. The Bank's training materials
19
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em hasize that
36:11-24,
141:14-142:15; PX 61 ; PX 62.
absent
e
uthorized
the disputed transaction, the Bank was
re
•
•
ermanent credit in
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
285:16-21.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Objection/Best Evidence. AF ,r 21
~
s to characterize or discuss•
_
, which is the best evidenceoTits
content and terms.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Unsupported/Contains Legal Argument.
This paragraph consists of argument, not
facts, concerning what EFT A and Reg E
re uire. BANA does not dis ute that it
9
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ATTOR/\E.YSAT LA\v
PX 63 at -290332; PX 12 (Daniels)
202:23-203:13; PX 15 (Letson) 245:25-
246:5, 248:25-249:14.
PX 1 (Kreis Rpt) ifif34-37; PX 60
(AISOP) at -559893- 901.
PX 1 (Kreis Rpt) ifif34-36; PX 60
(AISOP) at -559893-95, -559898-901.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
had an understanding of what its
obligations were pursuant to EFTA and
Reg E. For reasons stated in its MSJ and
Reply, BANA did not knowingly or
intentionally violate those obligations.
See also SUF ,r,r 46-114.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Objection/Best Evidence. AF ,r 25
~
s to characterize or discuss•
-
which is the best evidence ot its
content and terms.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Objection/Best Evidence. AF ,r 26
~
s to characterize or discuss•
-
which is the best evidence oi' its
content and terms.
Immaterial. For the reasons explained in
BANA's MSJ and Reply, this purported
fact is not material to the issues raised in
BANA's MSJ. See also RAF ,r 20.
Objection/Best Evidence. AF ,r 27
u orts to characterize or discuss•
which is the best evidence ot its
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ATTORNEYS AT LAW
PX 60 (AISOP) at -00559897, -559901
("Use as supporting only"); PX 12
(Daniels) 138:14-140:4; PX 1 (Kreis
Rpt) ifif38-39.
EFTA and Reg E
pro 1 1te t e Ba
om rescinding
credits issued on an A TM claim more
than 45 days after notice of the claim or
after the Bank had already informed the
claimant that provisional credit had been
made permanent, whichever came first.
enymg
an
AT
com o claims based solely on
CFF-1 would result in erroneous denials
of valid claims by legitimate EDD
cardholders.
,
at -
,
ad) 64:25-65: 15,
69:14-17; PX 66 at-169914; PX 23
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
content and terms.
Contains Legal Argument. This
paragraph consists of argument, not
facts, concerning what EFTA and Reg E
require. BANA does not dispute that it
had an understanding of what its
obligations were pursuant to EFT A and
Reg E. For reasons stated in its MSJ and
Reply, BANA did not knowingly or
intentionally violate those obligations.
See also, e.g., SUF ,r,r 46-114.
U nsupported/Mischaracterizes &
Incomplete. This paragraph consists of
argument, not fact. Also incomplete and
unsupported, as BANA witnesses,
includin Fox and Letson, testified that
11
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ATTORNEYS AT LAW
(Holt) 134:5-135:23, 138:10-140:5.
due to its own
dec1s10n not to issue EMV chip cards,
EDD cardholders were particularly
vulnerable to skimming and card-present
counterfeit fraud such as unauthorized
ATM withdrawals-the precise type of
claim that CFF-1 would automatically
deny.
See AF 109-112, 117; PX 21 (Ahmad)
50:22-52: 16; PX 15 (Letson) 155:24-
157:5, 164:6-165:10.
CFF-1 could not
distmgu1s
etween va 1d claims
submitted by legitimate cardholders and
fraudulent claims submitted by criminals
engaged in benefits enrollment fraud
using stolen identities. -
-
the only way to di~en
"uietwo categories was to conduct a
manual investi ation of each claim
includin
.
.
'
(Martin) 286:25-288:8; PX 23 (Holt)
103:14-25, 127:9-25)
Unsupported/Contains Legal Argument.
This paragraph consists of argument,
not fact. Plaintiffs' cited exhibits do not
support that it was BANA's own
decision not to issue EMV chip cards, or
that it knew EDD cards were
"particularly vulnerable." Further, the
undis uted evidence shows that
See SUF ,r,r 246-248.
Unsupported. This paragraph consists of
argument, not fact. Plaintiffs' cited
exhibits do not support that: (i) BANA
knew that CFF-1 could not distinguish
between valid and fraudulent claims; or
(ii) BANA knew that the only way to
differentiate between the two categories
was to conduct a manual investigation of
each claim. Further, the undis uted
evidence shows that
, ren enng a
manua mvest1gat10n unnecessary. See
SUF ,r,r 81-94.
D. THE BANK WAS CAPABLE OF MANUALLY INVESTIGATING ALL
ATM CLAIMS IN ACCORDANCE WITH REG E
32. Because the Bank, before July 2021,
issued all EDD cardholders magstripe-
only cards that did not have an EMV
chi , EDD cardholders were vulnerable
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
Unsupported/Contains Legal Argument.
This paragraph consists of argument,
not fact. Plaintiffs' cited exhibits do not
su ort that EDD cardholders were
12
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ATTORNEYS AT LAW
to skimming and cardpresent counterfeit
fraud, which led to
See AF 109-119; PX 21 (Ahmad) 78:12-
79:16; PX 247 at -372043.
33. Under the applicable Visa liability
shift rules, losses from unauthorized
ATM transactions on the Bank's ma -
stri e-only cards
Had the a
issue
c 1p
car s to EDD cardholders, the EMV chip
would have prevented counterfeit fraud at
chip-enabled points of transaction
(including the vast majority of ATMs ),
and under the Visa liabili
shift rules
See AF 109-119; PX 2 (Cloninger Rpt)
if49; PX 24 (Ehresman) 29:3-30:8
30:18-32:10; PX 67 at -416779
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
"vulnerable" to skimming because EDD
cards did not have EMV chips. Further,
the undisputed evidence shows that
EMV chi technolo
does not
Unsupported/Contains Legal Argument.
This paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that EMV chip technology
would have prevented counterfeit fraud
at chip-enabled points of transaction.
Further, the undis uted evidence shows
that
IS
AF a so a1 s to t e extent it is premised
on opinions from a purported expert that
should be excluded. See ECF 563-1 .
Objection/Best Evidence. AF ,r 33
purports to characterize or discuss Visa
rules, which are the best evidence of
their content and terms.
U nsupported/Mischaracterizes &
Contains Legal Argument. This
paragraph consists of argument and
speculation, not fact. Plaintiffs' cited
exhibits do not su ort that: i
13
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ATTORM.YSAT LAW
valid and which were fraudulent claims
submitted by criminals engaged in
benefits emollment and identity theft
before having to pay any provisional or
permanent credit. CR&R, as the Bank's
Re E ex erts understood that '
PX 67 at -416779; PX 69; PX 24
(Ehresman) 34:8-35:18.
3 5. The head of the Bank's claims
processing division, Renee Johnson,
estimated that th
PX 70 at -426407.
BANA'sREsP. TOPLs.' ADD'LSTMT. OF FACTS
enabled BANA to determine which
claims were fraudulently submitted by
criminals engaged in benefits emollment
fraud and identity theft. Further, the
undis uted evidence shows tha
Immaterial/Unsupported. This purported
fact is not material to the issues raised in
BANA's MSJ. Further, Plaintiffs proffer
no evidence showing that BANA had the
ability to do this, that they could have
performed as estimated, or that it would
have changed the outcome of any
particular claim decision at issue. See
also RAF ,r 34.
Undisputed, but immaterial. This
purported fact is not material to the
issues raised in BANA' s MSJ.
14
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ATTORNEYS AT LAW
PX 69 at-225377; PX 71 at -181662; PX
18 (Johnson) 65:8-17, 69:5-8.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort that BAN
34.
U nsupported/Mischaracterizes &
Contains Legal Argument. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort
15
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ATTORNEYS AT LAW
PX 69 at -225375; PX 18 (Johnson)
195:17-197:23; see AF 40-75, 87-95.
E.
THE BANK CHOSE NOT TO COMPLY WITH REG E AND
INSTEAD TO IMPLEMENT ITS CFF POLICIES OF AUTOMATIC
CLAIM DENIALS AND CREDIT RESCISSIONS BECAUSE ITS
PRIORITY WAS REDUCING ITS REG E LIABILITY-RELATED
OPERATIONAL LOSSES
39. Under the EDD-Bank Contract, the
Undisputed.
Bank (not the State) was solely liable for
any losses due to transaction fraud on
EDD debit cards (also known as "fraud
losses").
PX 33 at 8 ("Bank of America is
responsible for external transaction fraud
on cards that we issue"), 142 ("EDD
shall not be liable for ... fraud, misuse,
and/or lost or stolen debit cards."), 235
("The [Bank] shall not charge the EDD
for ... fraud, misuse, and lost or stolen
debit cards."), 253; PX 63 at -290330;
PX 13 (Chestnut) 87:21-88:14.
40. The EDD card program was part of
the Bank's Global Transaction Services
(GTS) group, run by Paiz Ahmad, which
was part of the Global Banking and
Markets (GBAM) division, run b then-
COO Thomas Monta .
PX 27 (Montag) 6:18-7:16; PX 28
(Moynihan) 25:1-26:5, 36:1-5, 51:7-23;
PX 20 (Garfield) 98:16-101:20, 103:2-6.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes &
Immaterial. Unsupported that Thomas
Montag "r[a]n" GBAM. For reasons
ex lained in BANA's MSJ and Reply,
are not
matena to any a ege
a
ait and
have no bearing on BANA's MSJ.
U nsupported/Mischaracterizes &
Immaterial. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort that
16
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GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
PX 72 at 8-9 (Rog 35 Resp.); PX 24
(Ehresman) 22:22-24: 13.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
. t erw1se, t 1s
1s not
material to any alleged bad faith and has
no bearing on BANA's MSJ.
Unsupported/Immaterial. Plaintiffs'
cited exhibits do not su ort that
. t erw1se,
t 1s AF 1s not material to any alleged
bad faith and has no bearing on BANA's
MSJ.
U nsupported/Mischaracterizes &
Immaterial. Plaintiffs' cited exhibits do
17
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ATTORNEYS AT LAW
PX 27 (Montag) 9:23-10:7, 10:18-11:16,
12:7-14, 123:23-124:12, 125:8-11; PX
28(Moynihan) 25:1-27:2, 43:2-11; PX 21
(Ahmad) 27:11-28:11.
• W IC
Ill 2020-21
an
ank Chairman Brian
oyn1 an and
his direct reports, including then-COO
Thomas Montag, Cathy Bessant, Paul
Dinofrio, Dean Athanasia, and Chief
Risk Officer Geoffrey Greener.
PX 28 (Moynihan) 9:24-10:3, 16:7-23,
27:22-28:2; PX 27 (Montag) 7:5-8:16;
PX 21 (Ahmad) 27: 11-28: 11; PX 26
(Simpson) 13:22-14:2; PX 22 (Fox)
21:25-22:13; PX 24 (Ehresman) 52:13-
53:24.
45. Starting in mid-August 2020, the
Bank's projected fraud losses in the UI
card ro ram
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
·al to any
alleged bad faith and has no bearing on
BANA's MSJ.
Incomplete. Undisputed
-
individuals identI 1e m AF ,r 44.
lncmiij,lete because BANA witnesses
testified that
Unsupported/Mischaracterizes &
Incomplete. Plaintiffs' cited exhibits do
pport that "[ s ]tartin in mid-
the Bank's
; see i .
Otherwise, this AF is not material to
any alleged bad faith and has no bearing
on BANA' s MSJ.
18
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ATTORNEYS AT LAW
46. By mid-September 2020, the Bank's
ro • ected losses in the UI card ro ram
PX 74 at -371658-59; PX 75 at -695594.
47. The Bank's senior leaders directed
their subordinates to develop a claims-
screening mechanism that would enable
the Bank '
an to stop 1ssumg
1t on certam c aims.
PX 76 at -630836; PX 77 at -371977; PX
271 at -874614-15.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported/Speculative. Plaintiffs
purport to characterize the documents,
but do not cite any testimony reflecting
Greener's actual knowledge.
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Further, Plaintiffs' cited exhibits do
not support that "senior leaders" directed
"subordinates" to reverse or stop issuing
credits on any particular type of claim.
To the extent the AF seeks to imply that
BANA intentionally reversed permanent
credits, evidence shows that is false. See
SUF ,r,r 104-107; RAF ,r 87.
U nsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Further,
Plaintiffs' cited exhibits do not su ort
19
8 is
cal
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18
19
20
49. GBAM turned to GFC to develop an
automated "filter" that the Bank could
use to automatically deny claims and
rescind credits without a manual
adequate investigation. Late on Friday,
Se tember 18, 2020,
PX 76 at -630836; PX 19 (Schwartz)
126:9-127:17, 137:21-138:16; PX 23
(Holt) 119:23- 120: 14.
50. GBAM instructed GFC to create a
21
,
22
23
24
25
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27
28
GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
PX 76 at -630836A; PX 23 (Holt) 117:7-
19.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Further, Plaintiffs' cited exhibits do
not support that the CFF was created late
on September 18, 2020, that PX 76
refers to the CFF or
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Further Plaintiffs' cited exhibits do
20
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'
4
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ATTORNEYS AT LAW
PX 79 at -630837; PX 19 (Schwartz)
152:5-155:8, 173:3-175: 12 178:3-
183: 18
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes &
Incomplete. This paragraph consists of
argument, speculation, and
characterizations, not fact. Further, the
exhibits cited b Plaintiffs do not
establish
At most
• '
2, 17
8; DX 149.
ndisp
ence,
stimo
the leaders of
•
at
,r,r 77-94.
21
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ATTORNEYS AT LAW
.
.
.
-
-
.
.
,
.
24, 243:20-244:7.
PX 80 at -125014; PX 19 (Schwartz)
152:5-155:8, 178:3-183:18, 214:14-
216:15· PX 79 '
53. After the September 20 meeting, GFC
(Schwartz) provided GBAM additional
information showin that
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
U nsupported/Mischaracterizes2
Incomplete & Immaterial. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Further, unsu orted that Plaintiffs'
cited exhibits
and they do n t
andGTS
,r,r 77-94.
s of
at
Unsupported/Mischaracterizes/
Incomplete & Immaterial. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' AF and characterization
of PX 79 is unsupported and misleading,
as PX 79 does not contain the words or
phrase- Moreover,
undisp=ding
testimony from the leaders of BANA' s
antifraud
ou s shows that
22
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ATTORNEYS AT LAW
threshold to CFF-1.
PX 79 at -630837; PX 19 (Schwartz)
158:23-162:25; PX 290 at 8 (Rog 28
Resp.).
54. On September 21 , 2020, the chief
officers learned that
PX 82 at -372013; PX 28 (Moynihan)
66:4-67:23; PX 83 -118367; PX 44 at -
421427.
5 5. With the next board meeting
ates to
n the prepa1 UI
O's
the
r
day (September 21),
awlor to
PX 77 at -371977; PX 27 (Montag)
96:10-97:3, 110:18-111 :6; PX 28
(Moynihan) 28:18- 29:25.
56. The next day, Lawlor told other
mana ers he was
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes &
Immaterial. This paragraph consists of
argument, speculation, and
characterizations, not fact. Further,
Plaintiffs' cited exhibits do not su
that
no bearing on BANA's MSJ.
ot
th and has
U nsupported/Mischaracterizes &
Immaterial. This paragraph consists of
argument, speculation, and
characterizations, not fact. Further,
Plaintiffs' cited exhibits do not su
that there was
blish
·nates
n the
. .
,
·s AF
is not material to any alleged bad faith
and has no bearing on BANA's MSJ.
23
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,,
1
2
PX 84 at -694889-90.
3
4
5
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7
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ATTORNEYS AT LAW
F.
THEBANKKNEWCFF-1 WOULDWRONGLYDENYVALID
CLAIMS YET MADE NO ATTEMPT TO ASSESS OR VALIDATE THE
ACCURACY OF CFF-1 IN IDENTIFYING FRAUD, EITHER BEFORE
OR AFTER IMPLEMENTATION
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su
ort that
SUF ,r,r 88-92.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
24
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18
19
PX 262 at -87776; PX 88 at -87780; PX
91 at -87760; PX 19 (Schwartz) 199:25-
208:21.
20
59. The final version of the CFF was
21
22
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24
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28
GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
PX 135 at -125177; PX 90 at -450517.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes.
Plaintiffs' cited exhibits do not support
that the final version of the CFF was
U nsupported/Mischaracterizes. See RAF
,r 59. Also unsupported. Plaintiffs' cited
exhibits do not support that no one at
BANA conducted an analysis as to what
percentage of ATM claims were
fraudulent. Further, undis uted evidence
shows that
25
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percentage of those ATM claims were
actually fraudulent.
PX 90 at -450517; PX 91 at -87760; PX
19 (Schwartz) 199:25-208:21, 211:25-
214:24; PX 20 (Garfield) 173:6-22,
271 :23-278: 1, 282:4-23; PX 15 (Letson)
199:22-201:7; AF 57- 58, 61-62.
PX 23 (Holt) 92:6-19, 180:15-181:16,
191:3-194:20, 275:11-276:4; PX 19
(Schwartz) 37:20-38:20, 108:7-110:18,
201:11-205:20, 212:3-214:24, 260:6-
263:16, 265:4-15; PX 92 at-881824; PX
15 (Letson) 144:11-145:3, 170:7-176:14,
179:9-180:16; PX 22 (Fox) 53:10-21; PX
21 (Ahmad) 68:14-16; PX 20 (Garfield)
173:6-22, 271:19-278:1, 282:4-23.
62. Bill Fox, Michael Letson, Anne Holt,
and Ryan Schwartz were the GFC
personnel who worked on develo ing the
CFF indicators. Schwartz was
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that no one at BANA conducted
an analysis as to the percentage or
probability of fraudulent A TM claims.
Further undis uted evidence shows that
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su
ort that Schwartz was
26
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PX 19 (Schwartz) 37:20-38:20, 72:2-8,
77:3-7, 77:22-24, 108:7-110:18, 201:11-
205:20, 212:3-214:24, 260:6-263:16,
265:4-15.
CFF-1 would
incorrect y eny eg1ttmate cardholders'
valid ATM and ATM/combo claims,
particularly because the Bank-issued
mag-stripe-only cards were highly
susceptible to skimming and card-present
counterfeit fraud, includin unauthorized
ATM transactions.
PX 22 (Fox) 49:23-50:6; see AF 109-
112, 117; PX 14 (Martin) 127:8-132:15,
287:14-288:8· PX 43 at -452826 '
,
c wartz
: 8,
201:11-205:20; 212:3-214:24; PX 23
(Holt) 161:24-162:25; 179:5-181:16; PX
21 (Ahmad) 64:25-65:15, 68:14-16; PX
93 (Rog 28 Resp.) at 8; PX 14 (Letson)
170:7-176:14· PX 105 at -100644-70
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not support that BANA
"knew that CFF-1 would incorrectly
deny legitimate cardholders' valid ATM
and ATM/combo claims, particularly
because the Bank-issued mag-stripe-only
cards were highly susceptible to
skimming and card-present counterfeit
fraud, including unauthorized ATM
transactions." Further, the undis uted
evidence shows
27
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cardholders of access to their EDD
benefi
•
•
• g
would
81:10; PX 78 at -57708; PX 277.
PX 27 (Montag) 17: 14-19:8, 56:5-57:4;
PX 22 (Fox) 81:1-82:1, 82:7-83:8; see
AF 60-63, 68.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of legal argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA knew or believed
that the CFF
ee
SUF ,r,r 83-85, 88-94; see a so DX 4 ,r,r
33, 35. Plaintiffs' cited exhibits also do
not support that BANA "knew that
denying cardholders of access to their
EDD benefits without notice and hearing
would
," nor
does it esta
at car o ers were
denied access to EDD benefits without
notice or an opportunity to regain full
access. Further PX 277 merel indicates
that
U nsupported/Mischaracterizes. This
paragraph consists of argument, not fact.
Plaintiffs' cited exhibits do not su port
that
her,
28
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66. After the CFF was implemented,
U nsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort that
SUF ,r,r 99-
103; see aso PX 24 92:23-93:14.
G. THE BANK'S SENIOR LEADERS DIRECTED, AUTHORIZED, AND
RATIFIED THE BANK'S CFF-1 POLICIES
67.
, including CEO
Undisputed.
Brian T. Moym an, t en-COO Thomas
Montag, Cathy Bessant, Paul Dinofrio,
Dean Athanasia, and Chief Risk Officer
Geoffrey Greener, were executive
officers of the Bank.
PX 28 (Moynihan) 9:24-10:3, 16:7-23,
27:22-28:2; PX 27 (Montag) 6:18-8:16;
PX 21 (Ahmad) 26:7-19; PX 22 (Fox)
21:25-22:13; PX 24 (Ehresman) 52:13-
53:24.
68. In addition to executive officers,
,_
,, (i.e. direct reports to the
~t
reports), and others with
comparable levels of res onsibili
within their units
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not support thiit
" i]n
addition to executive officers,
-
(i.e. direct reports to tlie
O's
"ctire"ct'reports ), and others with
comparable levels of res onsibili
within their units ...
29
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ATTORNEYS AT LAW
card program); Brad Garfield, who was
responsible for overseeing the GTS
prepaid product development team; John
Lawlor, who was responsible for public
sector banking; Paul Simpson, who was
responsible for the Bank's call centers
servicing prepaid cardholders; William
Fox, who was head of GFC; Michael
Letson, who was head of financial crimes
analytics within GFC; Jennifer
Ehresman, who was head of Consumer
Client Protection; and Renee Johnson,
who ran the Claims Resolution &
Recovery unit.
PX 28 (Mo nihan 21:7-23, 23:1-19,
25:1-26:5
), 27:12-21
, 41:6-24, 83:5-15, 86:1-2,
.
: 1, 138:4-139:13, 187:1-
188:25, 235:8-15; PX 21 (Ahmad)
21:10-22:2; PX 20 (Garfield) 25:24-29:4,
35:4-37: 18; PX 26 (Simpson) 9: 12-11:5,
13:22-14:4; 16:7-17; PX 22 (Fox) 12:15-
21, 13:1-23, 71:11-20· PX 15 Letson
37:1-9, 52:4-23
'
36:14-37:5, 41:1-42:1; PX 18 (Johnson)
7:4-10; PX 17 (Lennon) 192:1-192:23;
PX 285.
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
Immaterial. Also immaterial for the
reasons stated in BANA's MSJ and
Reply because Plaintiffs cannot establish
that any of these individuals acted in bad
faith or with malice or oppression.
Unsupported. Plaintiffs' cited exhibits
g.,
186
244:18-22 (Ahmad never presented to
Moynihan on the CFF's rules).
Undis uted but immaterial. Undis uted
30
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'
3:8-
. -8: 14,
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82:10-18.
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BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
But nnmatena for
t e reasons state m BANA's MSJ and
Rep~se Plaintiffs cannot establish
that-
acted in bad faith or with
mahce or oppression .
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
establish the alleged "fact." Further,
undisputed evidence, including direct
deposition testimon from Mo nihan
indis utabl shows
'
244:18-22.
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PX 103 at -882978 (CEO Memo; content
redacted for attorney-client rivilege);
PX 104 at -882713
:25-
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
,
77-94.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort that
,r 110.
32
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878451
-
").
7 4. The Board continued to be u dated
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
" support that the Board was "u dated
an perm1tte t e
- po 1c1es to
continue until enjoined by a federal court.
On January 20, 2021, executive risk
committee board members were notified
ofa
regularly on
Further the
that
s)
"
See AF ,I 72.
PX 102 at-878451; PX 270 at-883608-
09; PX 271 at -874614-15; PX 209; PX
210.
H. THE BANK'S SENIOR LEADERS DISMISSED EMPLOYEE
CONCERNS AND MAINTAINED THE CFF-1 POLICIES DESPITE
MOUNTING EVIDENCE OF CFF-1 'S INACCURACY AND HARMFUL
CONSEQUENCES
7 5. After CFF-1, the Bank was inundated
with calls from cardholders seeking
reconsideration of claims that had been
summarily denied without explanation.
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA was inundated with
calls from cardholders "seeking
reconsideration of claims that had been
summarily denied without explanation."
Further undis uted evidence shows that
See
DX 4 il 35; DX 109; see a so SUF ilil 99-
102. Plaintiffs' cited exhibits also do not
su
ort that cardholders were summaril
33
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ATTORNEYS AT LAW
).
76. If a cardholder succeeded in
contacting the Bank's Claims Call Center
and requested reconsideration of their
CFF-denied claim, and the Bank actually
investigated the claim on reconsideration
(rather than summarily denying the claim
again based on the CFF, as it did for
cardholders whose accounts were also
frozen based on the CFF , the Bank's
CR&R de artment
; PX 267; PX 18
191:8-12.
77. Although many cardholders were
unable to get through to the Claims Call
Center to request reconsideration of
those who di
PX 21 (Ahmad) 336:13-337:23; PX 15
(Letson) 292:9-298:8, 306:9-307:24; PX
107 at -556536; PX 108 at -143393.
78. The
CFF-1 '
positive rate. As of December 11, 2020,
the Bank's data showed that
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
denied without explanation. See also
SUF ,r,r 95-97.
U nsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not support that BANA
did not "actually investigate[]" claims
prior to reconsideration, or that
reconsiderations were the first
investigation of the claims. See also SVF
,r,r 81-84, 93.
However, undisputed that if a cardholder
contacted BANA and requested a
reconsideration of their claim,
reconsideration was provided. See, e.g.,
id. ,r,r 119, 121, 13 2.
U nsupported/Mischaracterizes &
Incomplete. This paragraph consists of
argument and characterizations, not fact.
Plaintiffs' cited exhibits do not support
that many cardholders were unable to
get through to the Claims Call Center to
re uest reconsideration, or
U nsupported/Mischaracterizes &
Incomplete. This paragraph consists of
argument and characterizations, not fact.
Plaintiffs' cited exhibits do not support
that CFF-1 had an "extraordinarily high
false positive rate." Further undis uted
evidence shows that
34
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ATTORNE.YSAT l.A\v
3,
);
at -
,
reis pt)
if72 ("[S]uch rates are incredibly high
and virtually unheard of in the
industry.").
79. The Bank knew that wait times in its
Claims Call Center were extraordinarily
long from September 28 until November
21, leading many callers to give up
before ever reaching a customer service
re resentative ("CSR"). -
a failure to seer---
reconsI eration does not prove a claim
was fraudulent and that there are many
reasons a legitimate cardholder might not
seek reconsideration of a CFF-denied
claim.
PX 21 (Ahmad) 359:8-360:14; PX 10
(Loehner Reb Rpt) ,r,r 46-61; see AF 96-
108.
80. The Bank's mid-level mana ers were
BANA'sREsP. TOPLs.' ADD'LSTMT. OF FACTS
. n t e
ust t ee months after the CFF was
implemented, between October 2020 and
December 2020, only about• of
denied claims were reconsidered. For
those claims reconsidered and
decisioned in October through
December 2020, approximately-
were resolved in the cardholder~or.
See id.; DX 4 35; DX 109; RAF 77.
Further,
U nsupported/Mischaracterizes &
Inadmissible. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not support that: (i)
"many callers [gave] up before ever
reaching a customer service
representative" or (ii) BANA knew there
were many reasons a legitimate
cardholder might not seek
reconsideration. Further undis uted
evidence shows that
ee
SUF ,r 99. A so, ma
ISSI e to the
extent this AF improperly relies on an
expert to state facts and opine on
BANA's state of mind and what it
"knew." See, e.g., A.B. v. Cnty of San
Diego, 2020 WL 4431982, *3 (S.D. Cal.
2020) (testimony on "subjective state of
mind and motives is im ermissible" .
35
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ATTORNEYS AT LAW
aware of the resulting harsh
consequences on innocent cardholders
and asked
81. Senior leaders dismissed concerns
that the CFF-1 policies were harming
legitimate cardholders.
82. The Bank received thousands of calls
from EDD cardholders seeking to regain
access to CFF-denied or CFF-frozen
funds. Many broke down in tears on the
phone with the Bank's CSRs, explaining
the hardship caused by their denied
accesss, sometimes for months on end.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
consists of argument, speculation, and
characterizations, not fact. Plaintiffs'
ited exhibits do not support the
llegation that "mid-level managers
ere aware of the resulting harsh
n innocent cardholders"
Additionally, for the
ed in BANA's MSJ and
orted fact is not material
ised in BANA's MSJ.
U nsupported/Mischaracterizes. This
paragraph consists of argument, not fact.
Plaintiffs' cited exhibit does not show
that senior leaders dismissed concerns
regarding the im act of CFF-1. Further,
the email states
102
Objection. PX 51, PX 53, PX 54, PX
55, PX 118, PX 119, and PX 120
purport to be transcriptions of audio
files prepared by Plaintiffs' counsel.
They are inadmissible pursuant to the
best evidence rule which requires "an
ori inal writin , recordin , or
36
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Cardholders explained that they relied on
their EDD benefits to feed their families,
pay rent, and buy diapers and other daily
necessities, and that because they were
unable to access those benefits, they were
at risk of eviction or homelessness. One
Bank CSR explained to the press, "We're
actually no longer allowed to tell them a
timeframe [ for when they'll regain access
to their funds], because we have no clue
.... Every day, I talk to 30 people with
the same story. I just pray for them after
my shift, honestly."
PX 117; e.g. , PX 51; PX 53; PX 54; PX
55; PX 118; PX 119; PX 120.
83. On November 24, 2020, CEO
Moynihan received a letter from all 56
California state legislators reporting that
"[ e ]very legislative office in our state has
experienced an unprecedented number of
constituents contactin them re uestin
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
photograph" "to prove its content." Fed.
R. Civ. P. 1002. The transcripts are also
unreliable and contain errors and
improper editorialization. See, e. . , PX
118 incorrect! transcribin
rat er
emp as1s a
e ,
F ,r
17.
1t10nally, PX 117 quotes an
alleged BANA employee mentioned in
the article, but Plaintiffs cannot
establish that the unidentified BANA
representative was in fact a BANA
employee or agent whose statements
qualify as party-opponent admissions
under Fed. R. Evid. 80l(d)(2)(D). See
DiMare v. RealtyTrac, Inc. , 714 F.
Supp. 2d 199, 206-07 (D. Mass. 2010)
(striking statements of unidentified
persons quoted in an affidavit where
proponent failed to establish agency
relationship or that declarants were
authorized to speak on behalf of party,
rendering statements inadmissible as
party-opponent admissions under Rule
80l(d)(2)(D)). Moreover, the article
improperly adds purportedly clarifying
language and editorial commentary to
interpret what the alleged CSR was
"trying to say" beyond the actual quoted
words, inserting meaning and context
not reflected in the alleged CSR's actual
statement and constituting inadmissible
speculation about the speaker's intent.
Unsupported/Mischaracterizations. This
paragraph consists of argument and
characterizations, not fact. Further,
Plaintiffs' cited exhibits do not support
that "[t]he Bank received thousands of
calls from EDD cardholders seeking to
regain access to CFF-denied or CFF-
frozen funds."
Incomplete. Undisputed that BANA
received the letter addressed to
Moynihan, to which BANA provided a
response. BANA's response can be
found at DX 79.
37
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assistance to resolve issues with ... their
Bank of America debit cards .. ... EDD
reports to legislative staff that Bank of
America has a proprietary formula to
detect fraud and has taken it upon
themselves to freeze cards and take
money from recipients . ... [ C]onstituents
report they are unable to get through to
your call centers, or when they do, the
issue is not resolved. Many of our own
staff have also tried to reach Bank of
America to no avail. It is simply
unacceptable that Californians entitled to
benefits are suddenly not able to obtain
them due to a Bank of America
determination that is impossible to
appeal."
PX 121 at -58621.
84. Moynihan
many
communications from EDD car olders
harmed by the Bank's CFF policies and
seeking assistance in regaining access to
their EDD funds. Many of these
cardholders explained to Moynihan that
they had tried calling the Bank's call
centers and EDD to no avail, that they
were desperate to regain access to their
funds, and that they relied on their EDD
benefits to pay for food, rent, and other
necessities.
See, e.g., PX 28 (Moynihan) 143:25-
147:21, 150:23-151:25, 152:5-18,
152:20-154:12, 159:1-5, 169:19-171:23;
PX 122 at -105556; PX 123 at -373787-
88; PX 124 at -188717-78; PX 125 at -
105900; PX 51; PX 128 at -284155; PX
129 at -41664; PX 130 at -27088; PX
131 at -41705; PX 132 at -27124; PX
133 at -41795; PX 134 at -27231 -32; PX
135 at -29021-22.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Undisputed that Moynihan received
unsolicited communications from
persons purporting to be EDD
cardholders, but the cited exhibits do not
support that they were "harmed by the
Bank's CFF policies" in the manner they
alleged in their communications.
Objection. PX 51, which purports to be a
transcription prepared by Plaintiffs'
counsel of produced audio files, is
inadmissible pursuant to the best
evidence rule which requires "an
original writing, recording, or
photograph" "to prove its content." Fed.
R. Civ. P. 1002; see also RAF ,r,r 17, 82.
85. In December 2020, the Bank knew
Contains Legal Argument/Incomplete.
that EDD '
This paragraph consists of argument and
" characterizations, not fact. However,
t undisputed that BANA attempted to
the Bank learned that CFF-
address re orts of Ion EDD call wait
38
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
CASE No. 21-MD-02992-GPC-MSB
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ATTORNEYS AT LAW
frozen cardholders were unable to get
unfrozen, even after reverifying with
E-DD
because they were stuck in a
'
" of fruitless calls to
an t e ank who would each refer
the cardholder to the other. Managers
proposed as earl as Janua
2021 that
the Bank '
_
, yet t e Ba
e aye unt1
'!vr'arciii8, 2021 before changing to a
"block" policy.
PX 138 at -874570; PX 273 at -127438;
PX 114 at -107328 1/14/21:
,
t -452795; PX 14
(Martin) 302:2-303:23, 308:9-310:4.
86. Once the Bank began to allow
cardholders to authenticate their identities
with the Bank after March 18, 2021,
-
o au o-
deny all ATM claims until enjoined by a
federal court.
PX 289 at -406129; PX 209; PX 210.
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
times and other efficiency-related
concerns by, among other things,
implementing a s
accounts would b
-
whenfr
SUF,r
gh
EDD. See id. ,r,r 127, 129; see also id. ,r
43.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort that "after March 18 2021,"
to deny claims "until enjoined by a
federal court" in spite of that figure.
Further, undis
•
•
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ATTORM.YSAT LAW
I. THE BANK INTENTIONALLY ADOPTED ITS CFF-1 POLICIES OVER
OTHER REASONABLY AVAILABLE ALTERNATIVES
87. On or about September 28, 2020,
relying solely on CFF-1, the Bank clawed
back nearly -
in permanent
credits that it 'liact"previously paid on
ATM and ATM/combo claims submitted
by approximately 6,100 Credit
Rescission class members. The Bank's
rescission of previously paid credit on
any claim that triggered CFF-1 was
intentional. Approximately-
of Credit
Rescission class members were denied
access to rescinded credits for more than
-
· The median duration of credit
resc1ss10n was-
.
PX 64 at -169954-55; PX 139; PX 140
at-571310;PX 141 at-417490; DX31
at No. 39; DX 76 at -7224; PX 24
Ehresman 72:1-72:15
-
. ,
an Rpt)
ifif65, 67-68 & Schedule l; PX 284.
88. From September 28, 2020 until June
8, 2021, the Bank relied solely on CFF-1
to autodeny without investigation or
issuance of provisional credit all ATM
and ATM/combo claims submitted by
EDD cardholders and sending
cardholders a form claim denial letter
BANA'sREsP. TOPLs.' ADD'LSTMT. OF FACTS
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that the "rescission of previously
paid credit on any claim that triggered
CFF-1 was intentional." Further, the
undisputed evidence (which Plaintiffs
themselves cite) shows recission of such
credits was a mistake caused by a
processin error. SUF
104-106- PX
64
. AF ,r 87 also fails to the
extent 1t 1s premised on opinions from a
purported expert that should be
excluded. See ECF 567-1.
Unsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not support that BANA
relied upon the CFF-1 to summarily
deny claims "without investigation[.]"
See also SVF
81-94. Plaintiffs' cited
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ATTORNEYS AT LAW
with no explanation of the reasoning for
the denial. Pursuant to this policy, the
Bank summarily denied without
investigation the ATM and ATM/combo
claims of approximately 104,300 Claim
Denial class members worth
approximately
Approximately
o c ass members'
claims were not pa1a for more than■
1111. The median duration of deprivation
'lor'class members wa~
PX 14 (Martin) 124:10-126:8, 127:20-
132:17, 132:20-133:17; PX 5 (Regan
Rpt) ifif37, 39, 45 & Schedule l ; PX 284;
PX 291 ; PX 155.
89. Instead of automatically denying
claims that hit the fraud filter, the Bank
could have prioritize" ATM claims for
investigation in accordance with
within 10 business da s,
manua y
investigate a
an
TM/combo
claims within 10 business days of claim
submission, thereby complying with its
Reg E obligations and not having to pay
provisional ( or permanent) credit for
fraudulent claims submitted by those
engaged in benefits enrollment fraud.
Nevertheless, the Bank deliberately chose
to implement its CFF-1 claim denial
policy.
PX 24 (Ehresman) 32:12-38:6, 97:4-23;
exhibits also do not support that BANA
sent cardholders claim denial letters
"with no explanation of the reasoning
for the denial." See also id. ,r 95.
Further, the undisputed evidence cited
by Plaintiffs themselves expressly states:
"Your claim has been closed because we
believe the account or the claim have
been the subject of fraud or suspicious
activity." PX 155; PX 291; see also DX
58. AF ,r 88 also fails to the extent it is
premised on opinions from a purported
expert that should be excluded. See ECF
567-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort that
.
; see a so
13.A ,r 28; DX
(acknowled •
).
PX 70 at -42
•
)
SUF ,r,r 6, 118.
238:16-239:
-");
90. From September 28 to October 3,
2020, and again from December 3, 2020
to March 17, 2021, the Bank
automatically froze the account of every
EDD cardholder who submitted an ATM
or ATM/combo claim; refused to allow
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported/Incomplete. This paragraph
consists of argument, speculation, and
characterizations, not fact. Also
unsupported and inconsistent with the
undis uted record, which shows that
41
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ATTORNEYS AT LAW
such cardholders to authenticate their
identity with the Bank and instead
directed cardholders to call EDD's
call centers and authenticate their identity
with EDD; and refused to unfreeze CFF-
frozen accounts unless the EDD
cardholder reverified their identity with
EDD and EDD directed the Bank to
unfreeze the account ("CFF-1 account
freeze policy"). Pursuant to this policy,
the Bank froze the accounts of
approximately 65,800 Account Freeze
class members, who were denied access
to their frozen account balances totaling
approximately
Approximate!
o
ccount Freeze
class members were frozen for more than
~
were frozen for more
~
PX 14 (Martin) 222:9-225:2, 232:2-12,
235:15-236:1; PX 142 (Simpson Ex 395)
at -845906-07; PX 49 at -41755
. -23;
. -
)
5
(Regan Rpt) ,r,r77, 79, 83 & Schedule 1;
PX 284.
91. When the Bank implemented its CFF-
1 account freeze policy requiring frozen
cardholders to call EDD to authenticate
their identity to regain access to their
account, it knew that EDD's call centers
were overwhelmed and understaffed and
unable to answer the vast majority of
calls received.
PX 13 (Chestnut) 154: 11-157:14; PX
143 at 17-18· PX 144 at -71396 '
92. Instead of using CFF-1 to freeze
cardholder accounts and require
reverification with EDD, the Bank could
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
ee
. urt er, t 1s
a1 s to
the extent it is premised on opinions
from a purported expert that should be
excluded. See ECF 567-1.
Contains Legal Argument/Incomplete.
This paragraph consists of argument and
characterizations, not fact. Undisputed
that BANA attempted to address reports
of long EDD call wait times and other
efficiency-related concerns by, among
other things, implementing a-trate
whereb accounts would be
when frau was
suspecte . See SUF ,r,r 124-135; RAF ,r
85. However, undis uted evidence
shows that
U nsupported/Mischaracterizes. This
paragraph consists of argument,
s eculation, and characterizations, not
42
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lock"
the
PX 14 (Martin) 224:5-16, 242:22-247:2,
255:23-256: 17; PX 145 (Bank's Rog 34
Response); see AF 93.
93. Prior to its CFF policies, the Bank
had
94. The Bank's
-is
an e ectlve too or
"autt'i'e'iiticating the true cardholder. The
Bank also had numerous other sources of
information for verifying the
identity and transaction history of EDD
cardholders, includin information in the
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
fact. Plaintiffs' cited exhibits do not
suppo
ould
addres
and
Contains Legal Argument/Incomplete &
Immaterial. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort that all
see i . ,r,r 35-38,
46-54
1s not material to BANA's
liability and has no bearing on BANA's
MSJ.
Unsupported/Immaterial. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that: (i)
could address t
observed
43
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Bank's possession for EDD cardholders
who also had consumer accounts with the
Bank, which the Bank estimated was
-~ly
PX 145 Ro 34 Res
." ; PX 14
artm
, 188:4-190:16,
218:2-220:7, 268:2-4, 301:18-302:25;
PX 1 (Kreis Rpt) ,r 66; PX 8 (Kreis Reb.
R t
23, 36; PX 136 at -90723
95. The Bank was capable of
authenticating legitimate EDD
cardholders and identifying
individuals usin a stolen identi!Y
~
-
an ot er processes and
resources, and was aware that its CFF-1
fre~ze
olic was trapping cardholders in
a '
," but deliberately
chose to imp ement and maintain its
CFF-1 freeze policy until March 18,
2021.
See AF 85-86, 93-94.
(ii) "other
d actually
er
,r,r
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited AFs do not support
that BANA could actually
"authenticat[ e] legitimate EDD
cardholders[,]" identify individuals
engaged in benefits enrollm--ent
fraud or
identi
fraudsters b using
and ot er
processes an resources. See, e.g., SUF
,r,r 54, 57, 118, 134, 135; RAF ,r 92.
J.
THE BANK DELIBERATELY UNDERSTAFFED ITS CLAIMS CALL
CENTER TO CREATE LONG WAIT TIMES
28
96. The Bank re uired EDD cardholders
Unsu orted/Mischaracterizes.
GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
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ATTORNEYS AT LAW
to call the telephone number on the back
of their EDD debit card to report an
unauthorized transaction (i.e. file a
claim).
PX 56 §§10-11; PX 33 §Vat 198
("Claims initiation can only be handled
via a live representative within our
Customer Service Center."); PX 3
(Minnucci Rpt) ,r,r23, 26, 47; PX 16
(Golden) 99:11-100:1; 100:2-9; PX 151
at-172243; PX 145 (Rog 34 Resp.).
97. When EDD cardholders called the
Bank's customer service number, they
first navigated an IVR system (i.e., a pre-
recorded menu of options) and then
waited on hold for the Main Call Center.
If the Main Call Center agent determined
that the call was regarding an
unauthorized transaction or unauthorized
transaction claim, the agent would again
place the caller on hold and transfer them
to the Bank's Claims Call Center. All
EDD cardholder calls seeking to submit a
claim regarding an unauthorized
transaction, to request reconsideration of
a CFF-denied claim, or to inquire about
the status of a pending claim were routed
to the Claims Call Center.
PX 3 (Minnucci Rpt) ifif22-26; PX 24
(Ehresman) 21:8-20; PX 16 (Golden)
32:5-21, 100:16-21, 168:5-17; PX 145 at
14-15 (Rog 34 Resp).
98. In late summer 2020, the Bank
implemented a policy of intentionally
understaffing its Claims Call center,
thereby increasing wait times and
creating ,_
,, in the Claims Call
Center, makllig'it more difficult for EDD
cardholders to submit claims of
unauthorized transactions, as a strategy
'
"
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Plaintiffs' cited exhibits do not support
the claim that BANA "required" EDD
cardholders to call the number on the
back of their card to submit a claim.
Moreover, this AF fails to the extent it is
premised on opinions and fact
summaries from a purported expert
without personal knowledge that are not
material facts and should be excluded.
See ECF 564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that callers to BANA 's customer
service number "waited on hold for the
Main Call Center" or for the Claims Call
Center. Moreover, this AF fails to the
extent it is premised on opinions and fact
summaries from a purported expert
without personal knowledge that are not
material facts and should be excluded.
See ECF 564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA had a "policy of
intentionally understaffing its Claims
Call center[.]" Further, undis uted
evidence shows that
45
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ATTORNEYS AT LAW
,
at-
,
24
esman) 50:5-13, 54:1-15, 62:21-63:3.
99. The Bank's deliberate understaffing
pol-·
c in late summer 2020 is reflected in
its
. In response to the
surge m ca vo ume in Spring 2020, the
Bank increased the number of CSRs until
PX 3 (Minnucci Rpt) ,r,r52-54, 58-81, 84,
Tbls. 5 & 6, Fig. 3, Appx. F; PX 152 at-
118438; PX 153 at -106094; PX 16
(Golden) 75: 14-76:2; 85:25-87:2;
124: 11-125: l; PX 156 at -719115; PX
286.
its Claims
Ca
d not
distinguish between deterring calls from
legit'
•
• •
•
d
mtentionally
'
" anyway.
PX 16 (Golden) 85:25-87:2; PX 24
Ehresman 24:7-13, 58:23-60:17; PX
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA had a policy of
intentionally understaffin its Claims
Call center that it
See SVF ,r,r
221-226; RAF ,r 98; see aso SUF
,r,r 214, 216-217. Moreover, this AF fails
to the extent it is premised on opinions
and fact summaries from a purported
expert that should be excluded. See ECF
564-1.
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA implemented a
-
" tr t
ofintentionally-
Further undis u~
at
46
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ATTORNEYS AT LAW
152 at -118438.
101. The Bank assumed that legitimate
EDD Cardholders would t
102. Deliberately subjecting customers to
intentionally prolonged wait times is
contrary to industry standards and
"unheard of in the call center industry."
PX 3 (Minnucci Rpt) ,r,r75-76.
103. When the Bank implemented its
CFF on September 28, 2020, the Bank
knew that its Claims Call Center was
already understaffed and that wait times
were ahead extraordinarily elevated.
The
implementing
its CFF po 1c1es wou cause a surge in
call volume from cardholders impacted
by the CFF.
PX 16 (Golden) 75:8-22; 124:22-125:1;
PX 3 (Minnucci Rpt) if72; PX 21
(Ahmad) 103: 13- 104: 19; 285:5-25,
287: 14-288:4.
104. From the CFF's implementation
until November 21, 2020, EDD
cardholders who called the Bank seeking
to submit a claim, inquire about the status
of a claim, or request reconsideration of a
CFF-denied claim wereYl!ie
uired to wait
on hold approximately
sim 1 to s ea wit an a ent in
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibit does not
support that "long wait times" were part
of an intentional strategy with res ect to
its call centers, or that BANA
Unsupported/Contains Legal Argument.
This paragraph consists of argument,
not fact. Plaintiffs' cited exhibit does
not support that BANA was
"[ d]eliberately subjecting customers to
intentionally long wait times." See RAF
,r,r 98-101. This AF also fails because it
is premised entirely on opinions from a
purported expert that should be
excluded. See ECF 564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA knew that "wait
times were already extraordinarily
elevated" or that it "knew that
implementing its CFF policies would
cause a surge in call volume." Moreover,
this AF also fails to the extent it is
premised on opinions from a purported
expert that should be excluded. See ECF
564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
establish that EDD cardholders calling to
inquire about CFF-denied claims waited
on hold
, as that
me u es non- DD
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ATTORNEYS AT LAW
the Claims Call Center, with average wait
times eakin in late October 2020 at
, compared to an
m ustry average
A in 2020 of 1.25
minutes.
PX 3 (Minnucci Rpt) ,r,r36, 39-40, 52-54,
A
x. E; PX 156 at-719115; PX 288.
105. As a result of these extraordinarily
long wait times, the average call
abandonment rate (i.e., the percentage of
callers who hang up or are disconnected
before their call is answered) in the
Bank's Claims Call Center from
i
tember 13 to November 21, 2020 was
, compared to an industry average of
¾.
PX 3 (Minnucci Rpt) ,r,rl4, 36, 39-40,
53, Fig. 2; PX 156 at-719115.
106. Understaffing was the root cause of
the extreme performance failures of the
Bank's Claims Call Center in the Fall of
2020, which fell far below industry
standards.
PX 3 (Minnucci Rpt) ,r,r58, 91-99.
107. Although the Bank had highly
accurate and reliable forecasting based on
the unemployment insurance daily
average, and although onboarding a new
call center staff person re uired at least
, the Bank
PX 3 (Minnucci R t
297 at -60339 '
7· PX
,
; PX 16
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
cardholders and persons not impacted by
the CFF. See 564-1 at 5; PX 3 ,r28.
Moreover, this AF fails because it is
premised entirely on opinions from a
purported expert that should be
excluded. See ECF 564-1.
Unsupported/Contains Legal Argument.
This paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not support that there
was an industry standard during a once-
in-a-lifetime pandemic. Moreover, this
AF fails because it is premised on
opinions from a purported expert that
should be excluded. See ECF 564-1.
Unsupported/Contains Legal Argument.
This paragraph consists of argument, not
fact. Plaintiffs' cited exhibit does not
support that there was an industry
standard during a once-in-a-lifetime
pandemic or that BANA experienced
"extreme performance failures." Further,
undis uted evidence shows that
1s
a so a1 s ecause 1t is
premised entirely on opinions from a
purported expert that should be
excluded. See ECF 564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that BANA had "highly accurate
and reliable forecasting based on the
unemployment insurance daily
average[.]" Further, undisputed evidence
shows that multiple factors rendered
accurate forecasting impossible during
2020. See SUF
213,216; DX 191
48
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(Golden) 66:8-68:6, 69:5-20; PX 28
(Moynihan) 160: 11-20; PX 160 at -
13097, section 3.5; PX 158 at -90040,
section 3.4; PX 159 at -13086, section
3.4; PX 160 at -13097, section 3.5.
108. The Bank's Claims Call Center
staffing policies were directed by Paul
Simpson and Faiz Ahmad, who were
delegated authority over those policy
decisions, and were authorized and/ or
ratified b then-COO Thomas Montag,
PX 26 (Simpson) 9:12-11:5; PX 24
(Ehresman) 21 :22-22:2; PX 27 (Montag)
21:21-25, 22:8-16, 59:2-16, 60:3-23; PX
157 at -881851; PX 28 (Moynihan) 41:6-
24.
.
use t e
mo
as
mnucci suggested, it would
have predicted a decline in call volume
rather than the actual increase. DX 13.A
,r 18. This AF also fails because it is
premised on opinions from a purported
expert that should be excluded. See ECF
564-1.
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort an insinuation that
See SUF ,r,r 220, 222, 225-227.
K. THE BANK DELIBERATELY DELAYED ISSUANCE OF EMV CIDP
CARDS FOR SELF-INTERESTED FINANCIAL REASONS
109. The Bank issued all EDD
cardholders cards containing only a
magnetic stripe and no EMV chip ("mag-
stripe-only cards"), even though the Bank
had included EMV chips on its other
consumer and business account
customers' debit cards since 2014. The
Bank did not issue EDD debit cards with
EMV chips until July 2021.
PX 14 Martin 61:19-23, 64:7-13, 65:4-
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
Incomplete/Immaterial. Undisputed that
BANA issued EDD cards without an
EMV chip prior to July 2021 in
accordance with its agreement with
EDD. See SUF ,r,r 10-16, 234-240.
Unsupported that BANA included EMV
chips in "business account" cards, and
immaterial because Plaintiffs' exhibits
do not support that EMV chips were
industry standard in prepaid cards at this
time. Moreover, this AF fails to the
49
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ATTORNEYS AT LAW
66:3; PX 161; PX 2 (Cloninger Rpt) if52; extent it is premised on opinions from a
PX 18 (Johnson) 53:20-54:20; PX 15
purported expert that should be
(Letson) 161:7-162:3, 162:14-15.
excluded. See ECF 563-1.
110. Because mag-stripe-only cards
contain cardholder information on the
unencrypted magnetic stripe and have no
other security mechanism to complete
transactions, they are easy for criminals
to steal and counterfeit. For decades,
criminals have stolen magstripe card data
through "skimming," which involves
installing inconspicuous "skimming"
devices on payment terminals, typically
in conjunction with the installation of a
device to capture entry of PIN numbers,
such as a pinhole camera or PIN pad
overlay. EMV-chip cards, which require
a fully encrypted, dynamic code specific
to each transaction, cannot be
counterfeited and are extremely effective
at preventing card-present counterfeit
fraud.
PX 2 (Cloninger Rpt) ,r,r18-25 ( citing
FBI Overview of ATM Skimming
report), 26-35, 58-75; PX 31 Jose h
94:5-9· PX 162 at -455617 "
PX
t -
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
support that EMV chip technology is
"extremely effective" at preventing
fraud and "cannot be counterfeited," that
magnetic stripe cards "are easy for
criminals to steal and counterfeit," that
criminals "for decades" have "stolen
magstripe card data through skimming,"
or that skimming is "typically in
conjunction with the installation of a
device to capture entry of PIN numbers,
such as a pinhole camera or PIN pad
overlay." Further, undisputed evidence
shows that EMV chip technology does
not prevent all fraudulent transactions.
SUF ,r 241. Undisputed evidence also
shows that cards with EMV chi s ■
Ji. if 245.
oreover, t 1s
a1 s to the extent it is
premised on opinions from a purported
expert that should be excluded. See ECF
563-1.
50
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,
,
,
at -
104749; PX 21 (Ahmad) 50:22-51:15,
79:9-16; PX 23 (Holt) 280:20-283; Exec.
Order No. 13681, 79 F.R. 63491 (Oct.
23, 2014 .
111 . EMV chips have been the industry
standard for card security since at least
2019.
PX 2 (Cloninger Rpt) ,r,r42-45, 46-55;
PX 11 (Cloninger Reb Rpt) ,r,r8-45; PX
15 (Letson) 161:7-162:3, 162:14-25; PX
172 at-401309; PX 171 at -167021.
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
Unsupported/Contains Legal Anrument.
This paragraph consists of argument and
opinion, not fact. Plaintiffs' cited
exhibits do not support that "EMV chips
have been the industry standard for card
security since at least 2019." Further,
undisputed evidence shows that EMV
chips were not standard for prepaid debit
cards at the time BANA entered into the
51
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GOODWI:-i PROCTER LLP
ATTORM.YSAT LAW
EDD Agreement and throughout the
EMV Chip Class period. SUP ,r 232.
Moreover, this AF fails because it is
premised on opinions from a purported
expert that should be excluded. See ECF
563-1.
112. By 2020, even before the pandemic, Unsupported/Contains Legal Argument.
the Bank was aware that
This paragraph consists of argument and
PX 2 (Cloninger Rpt) ,r,r61-62, 85, 87;
PX 164 at-370154; PX 181 at -351839;
PX 182 at -116001 • PX 171 at -167022
PX 14 (Martin) 81:7-83:13, 84:16-85:6,
86:9-24; PX 184 at -104744; PX 181 at -
BANA'sREsP. TOPLs.' ADD'LSTMT. OF FACTS
speculation, not fact. Plaintiffs' cited
exhibits do not su ort that
d
RAF ,r 11 0; SUF ,r,r
1s
also fails to the extent
it is premised on opinions from a
purported expert that should be
excluded. See ECF 563-1.
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su ort that
52
F
x en 1 1s premise on
from a
ert that
CASE No. 21-MD-02992-GPC-MSB
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ATTORM.YSAT LAW
351839; PX 2 (Cloninger Rpt) ,r,r60-64,
should be excluded. See ECF 563-1.
PX 2 Rpt)76; PX 11 (Cloninger Reh Rpt)
,r,r65-67; PX 31 (Jose2h 149:21-150:8;
PX 177 at -104749 "
114. The Bank promised EDD to (i) be
"at the forefront of fraud and data
security strategies"; (ii) provide
"immediate response to emerging fraud
trends" and "industry best-in-class" fraud
investigation; and (iii) "employ the
highest level of security and fraud
safeguards" with "multiple layers of
extensive security" to "provide
significant risk reduction associated with
misuse of stolen [ cardholder]
information."
PX 13 (Chestnut) 80:14-25, 85:12-86:9,
86:18-87:4, 87:11-20; DX 39 at-2761;
PX 33 at 252-254; see RSUF 10.
115. The Bank did not offer to issue
EMV chip cards before J anua
2021.
The Bank's strate
was to
BANA'sREsP. TOPLs.' ADD'LSTMT. OF FACTS
Mischaracterizes/Incomplete/Best
Evidence. To the extent the AF purports
to quote from the agreement between
BANA and EDD, that agreement is the
best evidence of its content and terms.
See DX 39. Further, it is undisputed that
the EDD agreement did not require
EMV chips and stated that EDD prepaid
cards must be equipped with "no less
than ISO 7811-compliant high coercivity
magnetic strip." SUF ,r,r 10-13.
Unsupported. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort that BANA
DX 192
: -
: ; see a so
,r,r 235-239.
Moreover, this AF also fails to the extent
it is premised on opinions from a
purported expert that should be
excluded. See ECF 563-1.
53
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ATTORNEYS AT LAW
357755; PX 188 at -353034 ("
1 at -
see
PX 180 at -297295; PX 175 at -166345;
PX 162 at -455617; PX 169 at -82602
(
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
U nsupported/Mischaracterizes. This
paragraph consists of argument and
characterizations, not fact. Plaintiffs'
cited exhibits do not su ort that BANA
Unsupported. This paragraph consists of
argument, speculation, and
characterizations, not fact. Plaintiffs'
cited exhibits do not establish that there
,
,
.
o fails to the extent it is
premised on opinions from a purported
expert that should be excluded. See ECF
54
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ATTORNEYS AT LAW
118. EMV would have prevented most, if
not all, of the card-present fraud that
EDD cardholders reported to the Bank.
Had the Bank converted to EMV, any
counterfeit fraud would have been
-
~ue to
PX 162 at -455617 "
BANA's RESP. TO PLS.' ADD' L STMT. OF FACTS
563-1.
Unsupported/Mischaracterizes. This
paragraph consists of argument,
speculation, and characterizations, not
fact. Plaintiffs' cited exhibits do not
su
ort that
,
atEMV
-Fifll0~SUF
because it is
premised on opinions from a purported
expert that should be excluded. See ECF
563-1.
55
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12:1-113:25.
119. When the Bank proposed to EDD
that they amend their contract to allow
the Bank to migrate EDD cards to EMV
technolo
in 2021 , EDD res onded that
Unsupported/Immaterial. Plaintiffs'
cited exhibits are testimony from 2025
and an email from March 2021, and in
any event do not show that BANA
believed it could migrate to EMV
technology without EDD approval.
Undisputed evidence shows that BANA
believed it could not unilaterall -
16
PX 29 (EDD) 38:3-39:10; 39:12-40:17;
61:9-62: 17; PX 201 at-59312.
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GOODWI:-l PROCTER LLP
ATTORNEYS AT LAW
Dated: February 20, 2026
Respectfully submitted,
By: Isl James W McGarry
JAMES W. MCGARRY (pro hac vice)
JM cGar_ry_(ci),f!oodwin law. com
GOODW:lN1>ROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +l 617 570 1000
Fax: +l 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith(ci),f!oodwinlaw. com
MATTHEwt. RIFFEE (pro hac vice)
MRiffee(ci),f!oodwinlaw. com
KEITH tBVENBERG (pro hac vice)
KLevenberf!{ci),f!oodwin law. com
GOODWm-PROCTER LLP
1900 N St. NW
56
BANA's RESP. TO PLS.' ADD'L STMT. OF FACTS
CASE No. 21-MD-02992-GPC-MSB
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BANA’S RESP. TO PLS.’ ADD’L STMT. OF FACTS
CASE NO. 21-MD-02992-GPC-MSB
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
601 S Figueroa St., Suite 4100
Los Angeles, CA 90017
Tel.: +1 213 426 2500
Fax: +1 617 346 4444
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10118
Tel.: +1 212 813-8800
Fax: +1 212 355-3333
YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
Case 3:21-md-02992-GPC-MSB Document 693-2 Filed 02/20/26 PageID.59508
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