Reply to Response to Motion re 589 Motion for Partial Summary Judgment — In re BofA Unemployment Litigation (Dkt. 693)

Record facts

U.S. District Court for the Southern District of California · No. 3:21-md-02992-GPC-MSB · Doc. 693 · 2026-04-17 · Docket on CourtListener

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REPLY ISO BANA’S MOT. FOR PARTIAL SJ
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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 STATES 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 
REPLY BRIEF IN SUPPORT OF 
DEFENDANT BANK OF AMERICA, 
N.A.’S MOTION FOR PARTIAL 
SUMMARY JUDGMENT (ECF 589) 
Date: 
April 17, 2026 
Time: 
1:30 p.m. 
Ctrm: 
12A – 12th Floor 
Judge: 
Hon. Gonzalo P. Curiel 
FILED PROVISIONALLY UNDER SEAL 
PURSUANT TO STIPULATED PROTECTIVE 
ORDER 
 
 
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TABLE OF CONTENTS 
Page 
INTRODUCTION ...................................................................................................... 1 
ARGUMENT .............................................................................................................. 1 
I. 
Summary Judgment Is Due on the EFTA Claim for Lack of Damages. ......... 1 
A. 
Fully Reimbursed Claim Amounts Are Not Actual Damages. ...................... 2 
B. 
Summary Judgment Is Due on Consequential Damages Too. ....................... 6 
C. 
Plaintiffs Fail to Evidence Causation. ............................................................ 9 
D. 
Plaintiffs Fail to Evidence Bad Faith for Treble Damages. ......................... 10 
II. 
Plaintiffs Cannot Establish a Violation of the CCPA or Resulting Harm. .... 12 
III. 
Plaintiffs Cannot Recover on Their Negligence Claims. ............................... 14 
IV. 
There Is No Material Dispute That Plaintiffs’ Implied Duty Claim Fails. .... 16 
V. 
There Is No Material Dispute on the Fiduciary Duty Claim.......................... 17 
VI. 
Plaintiffs’ Due Process Claims Must Fail. ..................................................... 18 
A. 
BANA Was Not a State Actor. ..................................................................... 18 
B. 
Cardholders Received All Procedural Protections Potentially Due. ............ 19 
VII. Plaintiffs Cannot Obtain Punitive Damages Under California Law. ............. 20 
A. 
Plaintiffs Misread § 3294(b), and Ignore § 3294(a). .................................... 20 
B. 
Plaintiffs Misdirect, But Identify No Material Dispute. ............................... 22 
VIII. Plaintiffs Cannot Obtain Punitives on Their Federal Due Process Claim. .... 25 
CONCLUSION ......................................................................................................... 25 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Abbit v. ING USA Ann. & Life Ins. Co., 
2016 WL 4542204 (S.D. Cal. Aug. 39, 2016).................................................... 16 
Aguilar v. Dixon, 
1995 WL 319621 (N.D. Ill. May 25, 1995) ....................................................... 25 
Alkayali v. Hoed, 
2018 WL 3425980 (S.D. Cal. July 16, 2018) ..................................................... 15 
Altheide v. Klenczar, 
2019 WL 3413845 (D. Nev. July 29, 2019) ....................................................... 20 
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 
526 U.S. 40 (1999) ............................................................................................. 18 
Anderson v. Liberty Lobby, Inc., 
477 U.S. 242 (1986) ............................................................................................. 7 
B.P. v. Balwani¸ 
2021 WL 4077008 (9th Cir. Sept. 8, 2021) ...................................................... 4, 5 
Beatty v. PHH Mortg. Corp., 
2021 WL 6116957 (N.D. Cal. Dec. 27, 2021) ................................................... 16 
Bigge Crane & Rigging Co. v. Workers’ Comp. Appeals Bd., 
188 Cal. App. 4th 1330 (2010) ........................................................................... 24 
Bookhamer v. Sunbeam Prods., Inc., 
913 F. Supp. 2d 809 (N.D. Cal. 2012)................................................................ 23 
Briseno v. ConAgra Foods, Inc., 
844 F.3d 1121 (9th Cir. 2017) .............................................................................. 8 
Cahoo v. SAS Inst. Inc., 
322 F. Supp. 3d 722 (E.D. Mich. 2018) ............................................................. 18 
Chamberlin v. Hartog, Baer & Hand, APC, 
2022 WL 1502587 (N.D. Cal. May 12, 2022) ................................................... 22 
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Coll. Hosp. Inc. v. Super. Ct., 
8 Cal. 4th 704 (1994) .......................................................................................... 20 
Comcast Corp. v. Behrend, 
569 U.S. 27 (2013) ........................................................................................... 6, 8 
FDIC v. Mallen, 
486 U.S. 230 (1988) ........................................................................................... 19 
In re Flash Memory Antitrust Litig., 
2010 WL 2332081 (N.D. Cal. June 9, 2010) ....................................................... 9 
Flintkote Co. v. Lysfjord, 
246 F.2d 368 (9th Cir. 1957) ............................................................................ 4, 5 
Gerlinger v. Amazon.Com, Inc., 
311 F. Supp. 2d 838 (N.D. Cal. 2004)................................................................ 16 
Haggarty v. Wells Fargo Bank, N.A., 
2012 WL 4742815 (N.D. Cal. Oct. 3, 2012) ................................................ 16, 17 
Hartley v. Dillard’s, Inc., 
310 F.3d 1054 (8th Cir. 2002) .............................................................................. 8 
Johnson & Johnson Talcum Powder Cases,  
37 Cal. App. 5th 292 (2019) ................................................................... 20, 22, 24 
Lannes v. CBS Corp., 
2013 WL 21225425 (C.D. Cal. Jul. 3, 2013) ..................................................... 21 
McNutt v. Veolia Transp. Servs., Inc., 
2010 WL 11507371 (C.D. Cal. Feb. 1, 2020) .................................................... 21 
Medlock v. Taco Bell Corp., 
2015 WL 10791410 (E.D. Cal. Dec. 11, 2015) .................................................... 9 
MV Universal, LLC v. Unisys Corp., 
2013 WL 12142616 (C.D. Cal. Jan. 2, 2013) ..................................................... 21 
Opperman v. Path, Inc., 
2016 WL 3844326 (N.D. Cal. July 15, 2016) ...................................................... 9 
Razuki v. Caliber Home Loans, Inc., 
2018 WL 6018361 (S.D. Cal. Nov. 15, 2018).................................................... 12 
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Reed v. Advoc. Health Care, 
268 F.R.D. 573 (N.D. Ill. 2009) ........................................................................... 9 
Robledo v. Bautista, 
2023 WL 35026 (D. Ariz. Jan. 4, 2023) ............................................................. 19 
Romo v. Ford Motor Co., 
99 Cal. App. 4th 1115 (2002) ............................................................................. 21 
Sheen v. Wells Fargo Bank, N.A., 
12 Cal. 5th 905 (2022) .................................................................................. 14, 15 
Uthe Tech. Corp. v. Aetrium, Inc., 
808 F.3d 755 (9th Cir. 2015) ........................................................................ 3, 4, 5 
Van v. LLR, Inc., 
962 F.3d 1160 (9th Cir. 2020) .......................................................................... 3, 7 
Wallis v. Super. Ct., 
160 Cal. App. 3d 1109 (1984) ............................................................................ 17 
 
Statutes 
15 U.S.C. § 1693f ...................................................................................................... 1 
15 U.S.C. § 1693m ........................................................................................ 1, 2, 4, 9 
Cal. Civ. Code § 1798.81.5 ..................................................................................... 13 
Cal. Civ. Code § 1798.150 ...................................................................................... 13 
Cal. Civ. Code § 3294 .................................................................................. 20, 21, 22 
 
Other Authorities 
12 C.F.R. § 1005.11(c)(2)-(3) .................................................................................... 3 
Exec. Order No. 13681, 79 F.R. 63491 (Oct. 23, 2014) ......................................... 13 
FED. R. EVID. 407 ..................................................................................................... 12 
 
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Plaintiffs first brought this lawsuit accusing BANA of not being aggressive 
enough policing the undisputed fraud that infiltrated the EDD UI program. The case 
has since transmogrified into a complaint that BANA did too much to police fraud. 
Not only that, Plaintiffs claim BANA did so in such bad faith so as to permit them to 
recover treble and punitive damages because nothing else is left to litigate, as 
Plaintiffs do not dispute that every class member has already been fully reimbursed.  
Plaintiffs’ opposition (ECF 652, Opp.) to BANA’s summary judgment motion 
(ECF 589-1, MSJ) contains a startling claim that makes it apparent that their plea for 
EFTA damages and related harms rests on an alternative reality fundamentally 
contrary to the undisputed record: Plaintiffs claim their hundred thousand class 
members would never have been credited for their disputed transactions if not for the 
injunction granted in this lawsuit and the CFPB/OCC regulatory settlement. Opp. 8, 
10. On that basis, they claim everything paid back to them is recoverable again (and 
subject to trebling) as actual damages. That might be the class Plaintiffs wish they 
had. But the reality is that nearly 
 were paid before the 
injunction and more than 
 were paid before the regulatory settlement—not 
because Plaintiffs brought suit, but because of the very BANA processes Plaintiffs 
try to impugn, through aspersions rather than evidence. As for the rest, it is still 
unknown how many (if any) experienced the harms theorized by Plaintiffs’ purported 
experts because they offer no evidence that they did. With their claims of liability 
and injury unsupported by the record, contrary to multiple prior rulings in this case 
rejecting their damages theories, and otherwise foreclosed as a matter of law, 
BANA’s motion for summary judgment should be granted. 
ARGUMENT 
I. 
Summary Judgment Is Due on the EFTA Claim for Lack of Damages. 
Plaintiffs have no evidence of any actual damage sustained as a result of any 
failure to comply with EFTA, which dooms their treble damages claim too. MSJ 15-
26; 15 U.S.C. § 1693m(a)(1); id. § 1693f(e). Plaintiffs’ first theory of damages seeks 
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the full amount of each disputed transaction as actual damages. But Plaintiffs do not 
dispute that all of those claims were paid back long ago, and the law of the case has 
already established that the damages cognizable for consumers “who have been fully 
reimbursed” are the “damages [they] suffered as a result of the delayed 
reimbursements”—not the full disputed claim amount. ECF 126 at 23; see also 15 
U.S.C. § 1693m(a)(1). This makes perfect economic sense, as a person who 
temporarily loses access to money does not experience the same economic harm as a 
person who permanently loses money. Plaintiffs’ second theory of damages seeks 
“consequential damages” in the amount of the interest payments it would have cost 
each class member to use credit cards to borrow their full claim amounts between 
their initial dispute and reimbursement. But Plaintiffs have not evidenced that any 
class members actually experienced this harm. Nor do they dispute that the classes, 
in any event, have also already had 
 paid back.  
A. 
Fully Reimbursed Claim Amounts Are Not Actual Damages. 
Unable to show they have evidenced the economic damages they seek to treble 
(as they must to withstand summary judgment), Plaintiffs rely instead on a legal 
argument that simply assumes they have already evidenced them. They argue: “The 
Bank does not dispute that, had it not made payments to class members as required 
by the Yick injunction and CFPB/OCC Consent Decrees,” they would be entitled to 
claim the full “principal amounts of the unauthorized-transaction claims” as actual 
damages, and BANA’s prior reimbursement of those claims would only reduce the 
total damages as an “offset after trebling.” Opp. 8. It is mystifying how Plaintiffs can 
say “[t]he Bank does not dispute” this, since BANA squarely disputed it as a central 
argument in its summary judgment motion. See MSJ 16-17. 
Plaintiffs rely on the Court’s remarks at class certification that an EFTA 
plaintiff is entitled to recover “full satisfaction of the claim for harm done” and then 
“[a]n offset should be subtracted from the total amount of damages after trebling.” 
Opp. 8 (quoting ECF 494 at 84). But this merely raises the question of what the “harm 
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done” actually was. To claim the full principal of the disputed claim as actual 
damages requires evidence that class members were (uniformly) harmed in those 
amounts. Here, however, Plaintiffs “received a full refund” and are therefore entitled 
only to “interest income” to reflect “loss of use of money.” See Van v. LLR, Inc., 962 
F.3d 1160, 1161-65 (9th Cir. 2020). It is unrebutted that the full refunded amounts 
are 
 of that alleged harm. See RSUF 172 (non-responsive counter).  
Plaintiffs provide no evidence to show that the “harm done” equals or exceeds 
the full amount of the credited claims. Rather, Plaintiffs assert that class members 
were only credited for their disputed transactions “in response to the Yick injunction 
or the Consent Decrees.” Opp. 10. And they ask the Court to presume that the credits 
to class members were only made because they were “required by the Yick injunction 
and CFPB/OCC Consent Decrees.” Id. 8. The evident purpose of making these 
assertions is to insinuate that the credits only came about because of this litigation, 
and therefore should not be considered relevant in assessing what harm occurred 
independently of this litigation. That is simply not true—as evident from Plaintiffs’ 
own expert’s analysis. 
 (about 
) had their 
claims paid before the Yick injunction. DX 185 ¶ 6.a (relying on DX 14.AB.1; DX 
27-27.B; DX 28.A.1; DX 31.B.1). Another
 were paid back after the injunction 
but before the consent orders—totaling 
 (about 
). Id. ¶ 6.b. Moreover, 
nearly 
 were fully credited for their claim 
amounts within 30 days of their dispute, and therefore have no damages at all, since 
that is less time than Reg E allows for an investigation. RSUF 174; 12 C.F.R. § 
1005.11(c)(2)-(3) (45- and 90-day investigation periods). None of these people have 
any factual basis on which to claim that they were only credited because of this 
lawsuit or the regulatory settlement. 
That distinguishes Plaintiffs’ case law. First, they cite Uthe Tech. Corp. v. 
Aetrium, Inc., 808 F.3d 755 (9th Cir. 2015), about “the ‘one satisfaction’ rule”—an 
“equitable principle” BANA never invoked. Id. at 757. BANA’s arguments concern 
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Plaintiffs’ failure to evidence the “actual damage sustained by [the class] as a result 
of” the alleged EFTA noncompliance as a matter of EFTA’s statutory language. 15 
U.S.C. § 1693m(a)(1). Plaintiffs cite Uthe for its holding that a plaintiff that won $9 
million in an arbitration in Singapore was entitled to sue again in the U.S. for treble 
damages under RICO. The Ninth Circuit recognized that “[t]he $9 million arbitral 
award roughly corresponded to [the plaintiff’s] losses,” but held that it did not 
“extinguish” its RICO claim under U.S. law because “[t]he Singapore arbitration was 
limited [to] claims . . . arising under Singapore law,” which does not recognize treble 
damages. Id. at 760. “[F]ull satisfaction” of the RICO claim, the Ninth Circuit ruled, 
is “three times the proven actual damages,” and the $9 million was cognizable only 
as “partial credit[]” toward the trebled amount. Id. at 762. Relying on this, Plaintiffs 
argue that they are entitled to walk away from this case with “twice” their actual 
damages, “not three times and not zero.” Opp. 8. But Uthe had actually evidenced 
his actual “losses.” Uthe, 808 F.3d at 759-60. Here, Plaintiffs do not evidence the 
principal claim amounts as their actual losses. They simply declare it. Uthe also had 
to go through the legal process to win back his $9 million. See id. The tens of 
thousands of class members credited through BANA’s reconsideration process—
which was offered and utilized before any litigation was filed (RSUF 97, 158)—and 
the tens of thousands more automatically credited before the Yick injunction (RSUF 
179) are not comparable to Uthe, who was paid nothing until he won in arbitration. 
The same applies to Flintkote Co. v. Lysfjord, 246 F.2d 368 (9th Cir. 1957), 
and B.P. v. Balwani¸ 2021 WL 4077008 (9th Cir. Sept. 8, 2021). Flintkote was an 
antitrust conspiracy case where the plaintiff settled and released its claims against all 
defendants except one for $20,000, then won $50,000 in compensatory damages from 
the remaining defendant, “trebled by the court to $150,000.” Id. at 373. The court’s 
holding that the $20,000 should be deducted from the $150,000 after trebling, rather 
than the $50,000 before trebling, necessarily hinged on the plaintiff’s having proven 
$50,000 in actual harm. Id. at 397. The case merely speaks to the order of operations 
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in a treble-damages calculation after the plaintiff has evidenced and proven its actual 
damages—exactly what remains to be evidenced and proven here. See id.  
Balwani, a lawsuit over the notorious Theranos fraud, involved an argument 
that class members who already recovered compensatory damages in a settlement 
with the State of Arizona are not barred from recovering RICO treble damages. 2021 
WL 4077008, *2. In a non-precedential opinion, the Ninth Circuit cited Uthe in ruling 
that “the [c]onsent [d]ecree does not bar plaintiffs’ RICO treble damages recovery so 
long as plaintiffs establish defendants’ liability for actual damages and additional 
damages are ‘offset’ by the amount already paid.” Id. The key phrase, of course, is 
“so long as plaintiffs establish defendants’ liability for actual damages.” Id. Nothing 
in the ruling accepted the consent decree as evidence that the amount of actual 
damages had already been established, which is the proposition Plaintiffs argue here. 
Further, as already shown, the classes here are not in the same position as litigants 
who had only been paid by virtue of litigation, given the tens of thousands of 
members credited in the ordinary course of business and not because anyone brought 
suit. 
As Judge Burns held at the Rule 12(b)(6) posture, and as BANA reiterated in 
its opening brief (MSJ 16), class members paid before the injunction might still have 
some claim of actual damages they can press, based on “the actual damages [they] 
suffered as a result of the delay”—assuming the “delay” went beyond the statutory 
limits. ECF 126 at 23. But that amount falls well short of the full claim amount. 
Plaintiffs respond to Judge Burns’ holding by misrepresenting both the holding and 
the arguments BANA made based on it. They argue, “[t]he only claim that Judge 
Burns dismissed in response to the Bank’s mootness arguments was from a single 
plaintiff who is no longer part of this action, whose claim had been paid in full within 
the statutory deadline—not months later in response to the Yick injunction or the 
Consent Decrees.” Opp. 10. But the important part of Judge Burns’ ruling is not the 
plaintiff he dismissed (who of course “is no longer part of this action,” by virtue of 
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the dismissal), but the plaintiffs he did not dismiss. Those plaintiffs alleged being 
paid back outside the statutory deadline, and on that basis the Court permitted their 
claims to go forward, but it still held their “actual damages” were limited to harms 
“suffered as a result of the delayed reimbursements”—consequential damages like 
being “unable to pay [utility] bills”—not “the amount of the reported error.” ECF 
126 at 23-24. The same applies to any similarly situated class members. 
Plaintiffs do not even dispute their failure to evidence the claim amounts as 
actual damages. Rather, they claim they do not have to, because “the proper approach 
for calculating treble damages is a question of law, not ‘
.’” Opp. 11. 
But the “question of law” does not arise until actual damages have first been 
evidenced as a matter of fact (and the other factual elements of a treble-damages 
claim have been established). And because Plaintiffs are litigating this case as a class 
action, that factual showing must be made “on a classwide basis.” Comcast Corp. v. 
Behrend, 569 U.S. 27, 34 (2013). Plaintiffs proffer no classwide evidence of actual 
damages in the full claim amounts. Thus, summary judgment for BANA is warranted. 
B. 
Summary Judgment Is Due on Consequential Damages Too. 
Plaintiffs also lack evidence of consequential damages resulting from their 
allegedly delayed reimbursements. The only evidence Plaintiffs proffer on 
consequential damages is their three experts who purport to measure the costs class 
members might have incurred taking gap loans on credit cards—a methodology 
already rejected by the Court when their accounting expert proposed it, and that 
remains just as deficient with two more hired experts proposing the same thing. See 
MSJ 18-20. The Court ruled that a methodology based on assumptions about 
“increased utilization of credit cards” did not carry Plaintiffs’ Comcast burden 
because the assumptions were not supported by evidence “as to most or even any of 
the EDD cardholders’ experience” and therefore does not produce a reliable 
“measure[] [of] damages across the entire class.” ECF 494 at 87-88 (citing Comcast).  
The Opposition argues that the Court only rejected Regan’s “Methodology 2,” 
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not his “Methodology 1.” Opp. 11. True, but the only evidence Plaintiffs furnish goes 
to the rejected Methodology 2, which proposed to measure consequential damages 
based on the cost of credit-card borrowing (ECF 494 at 88). See MSJ 17-20; ECF 
567-1, 565-1, 566-1 (motions to strike Regan, East, and Levine). Methodology 1 was 
a generalized proposal to award class members damages based on an “interest rate 
that reflects the ‘time value of money.’” ECF 494 at 86. That is not what Plaintiffs’ 
experts propose to measure here. See MSJ 17-20; ECF 565-1, 566-1, 567-1. 
Plaintiffs proffer Van in support of their damages methodology, but the Van 
court explicitly stated that it did not consider and made no determination whether 
plaintiff made a sufficient evidentiary showing to prove damages. 962 F.3d at 1165 
& n.3. Further, plaintiffs there claimed damages on what they could have earned if 
refunded sales tax had been placed in an “interest-bearing asset.” Id. at 1165. That is 
not what Plaintiffs are alleging and trying to prove here. Instead, they seek damages 
based on purported expert opinions regarding costs of credit-card borrowing based 
on their assumption (not evidence) that every class member borrowed that way. See 
MSJ 17-20. The Court’s rejection of that methodology makes those opinions 
immaterial (and due to be excluded). See ECF 565-1; 566-1, 567-1. 
Separately, the class certification ruling cannot properly be read as a 
preemptive ruling on summary judgment. The Court found Methodology 1 sufficient 
to carry Plaintiffs’ burden at the certification stage only by determining that “BANA 
does not dispute Methodology 1.” ECF 494 at 86. At this posture, however, it is very 
much in dispute. And the Court based its certification ruling on the premise that the 
only thing in dispute is “the interest rate used,” and “which interest rates should be 
applied is an issue for the factfinder, not a determination to be made at class 
certification.” Id. At summary judgment, however, Plaintiffs must provide evidence 
to support the use of any interest rate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 
242, 248-50 (1986). And Plaintiffs’ sole “evidence” is the credit-card rate pertinent 
only to the methodology the Court rejected, and continues to rely on the assumption 
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that every class member actually borrowed at and paid that rate. See ECF 494 at 88. 
Moreover, Plaintiffs must not merely evidence a figure—they must evidence 
it classwide. Comcast, 569 U.S. at 34-35. Plaintiffs are wrong twice over that they 
can rely on “generalizations rather than the summing of each class member’s 
individual damages amounts (a requirement that would eliminate classwide relief in 
a broad swath of circumstances).” Opp. 13. Substituting generalizations for evidence 
is not a permissible damages methodology, and variations in individual damages 
preclude classwide relief in this exact circumstance: when the plaintiff does not have 
a damages methodology to account for them. See Comcast, 569 U.S. at 34-35. The 
cases Plaintiffs cite do not license their effort to propose a uniform damages 
methodology for class members in extremely heterogeneous circumstances. 
Briseno v. ConAgra Foods, Inc., 844 F.3d 1121 (9th Cir. 2017), is a class-
certification decision that says nothing about whether Plaintiffs can rely on 
“generalizations” in lieu of evidence about class members’ actual damages. The 
Ninth Circuit did not conclude that “class member’s individual experiences” can be 
replaced by “generalizations about the relevant population’s economic behavior,” 
and Plaintiffs notably have no citation for this assertion. Opp. 13. Briseno merely 
held that the plaintiffs’ inability to identify all class members at certification did not 
transgress the “defendant’s due process rights,” in particular because—under the 
unique facts of that case—each class member suffered the same damages (they paid 
the same inflated price for a product). 844 F.3d at 1132.  
Hartley v. Dillard’s, Inc., 310 F.3d 1054 (8th Cir. 2002), is even further afield. 
It was not a class action but an individual employment discrimination case where the 
parties disagreed over whether “declining profits [] justif[ied] Hartley’s termination.” 
Id. at 1058-60. Whether a jury could consider an expert’s testimony on the financial 
problems of malls nationwide when evaluating whether the plaintiff’s “firing was 
pretextual,” id. at 1058, says absolutely nothing about whether it is permissible to 
base a class-wide damages methodology on “generalizations about national trends.”  
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Meanwhile, Plaintiffs have no response to the authorities BANA cited 
rejecting classwide damages methodologies that fail to account for heterogeneity. 
E.g., Opperman v. Path, Inc., 2016 WL 3844326, *24 (N.D. Cal. July 15, 2016) 
(rejecting damages model that failed to account for “variation across individual[]” 
class members and therefore “would overcompensate some class members, while 
undercompensating others”).1 At the end of the day, the sum total of Plaintiffs’ 
evidence on consequential damages consists of irrelevant expert opinions on what it 
might have cost to incur credit-card debt followed by a factually and legally 
groundless argument that the Court should award that sum in damages, just because.  
C. 
Plaintiffs Fail to Evidence Causation. 
Plaintiffs’ burden is not merely to evidence damages, but to evidence a causal 
link between those damages and the specific EFTA violations they allege. See MSJ 
21-24. Plaintiffs allege that the specific EFTA violation consists of denying 
transaction disputes based on CFF-1, but they fail to show that their alleged damages 
were the “result” of this, for multiple reasons. 15 U.S.C. § 1693m(a)(1).  
First, they have no classwide evidence that the outcome of using CFF-1 was 
uniformly wrong. When CFF-1 led to a proper denial, there is no resulting “actual 
damage”: consumers are not harmed by proper outcomes. See MSJ 21. Plaintiffs’ 
only counterargument is that “fraudsters in the class . . . could easily be excluded 
from any damages calculation.” Opp. 16. But the burden to figure out how to exclude 
them from the damages calculation rests on Plaintiffs, and their only method for 
accomplishing this is to foist the burden onto BANA. See MSJ 21-22; ECF 567-1 at 
10-13. The headline of their argument accuses BANA of “ignor[ing] EFTA’s burden-
 
1 See also, e.g., Medlock v. Taco Bell Corp., 2015 WL 10791410, *5 (E.D. Cal. Dec. 
11, 2015) (rejecting damages methodology based on “aggregate [] figures . . . instead 
of the actual rates” applicable to the class members); In re Flash Memory Antitrust 
Litig., 2010 WL 2332081, *10 (N.D. Cal. June 9, 2010) (rejecting methodology that 
“look[s] only at an average price trend,” ignoring “individual variances”); Reed v. 
Advoc. Health Care, 268 F.R.D. 573, 590-91 (N.D. Ill. 2009) (collecting cases 
rejecting “reliance on averages” to estimate classwide damages without evidence that 
“all members of the proposed class suffered” the same harms). 
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shifting framework.” Opp. 14. There is no burden-shifting framework. Plaintiffs 
made it up: they cite no case recognizing such a thing and never return to this theory. 
Second, many class members avoided harm altogether by availing themselves 
of the opportunity BANA offered 
. Supra § I.A. Every class 
member had that opportunity, and the ones who failed to take it cannot claim damages 
“result[ing]” from the filter—their only damages are the “result” of their own 
inaction. See MSJ 21-22 (citing cases); see also id. 23-24 (citing cases precluding 
trebling where plaintiffs failed to mitigate). Plaintiffs assert that “whatever 
‘reconsideration’ process the Bank offered is legally immaterial.” Opp. 15. Plaintiffs 
cite no authority for this proposition and ignore the authority BANA cited to the 
contrary. Their fallback is to argue that the efficacy of the reconsideration process is 
“disputed” because consumers allegedly had trouble getting their accounts 
“authenticated with EDD” or spent too long on hold. Id. 15-16. But it is undisputed 
that the class contains 
 
 faster than the statutory requirement. See supra § I.A. Further, any problems 
consumers experienced with EDD are the “result” of EDD’s processes, not BANA’s. 
Even if there are class members who 
—
something Plaintiffs have not evidenced—class members who 
 
 cannot claim damages as a “result” of a process they left unpursued.  
D. 
Plaintiffs Fail to Evidence Bad Faith for Treble Damages. 
Lastly, Plaintiffs do not satisfy the statutory requirements to treble any 
damages, apart from their failure to evidence them in the first place. See MSJ 22-26. 
Trebling requires a degree of bad faith no reasonable jury could find on this record.  
Plaintiffs say that rescission was intentional to try to salvage their claim for the 
Credit Rescission Class, but the argument relies on nothing more than a deliberate 
mischaracterization or ignorance of the evidence they proffer. See RSUF 104-06, 
108; see also RSUF 149. For example, Plaintiffs cite PX 20, but it clearly states (at 
248:11-15) that “paid claims” were “accidentally reversed.” Plaintiffs cite PX 64, but 
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it plainly reflects 
 
. Because no material facts can dispute BANA’s sworn testimony and 
contemporaneous records establishing that the rescission was simply a coding 
mistake, treble damages are not available on this claim. See MSJ 22, 26. 
As to the Claim Denial Class, recall that this case began with a complaint that 
BANA was “either unwilling or unable to stop criminals . . . from siphoning off 
millions of dollars” in fraudulent transactions. Yick v. Bank of Am., N.A., No. 21-
0376, ECF 1 ¶ 1 (N.D. Cal. Jan. 14, 2021). Against this background, and the evidence 
that the CFF was implemented in response to fraud patterns observed by BANA’s 
antifraud experts, BANA’s “reasonable basis” for believing the subject transactions 
were suspect is beyond dispute. See MSJ 24-25. Plaintiffs do not dispute the evidence 
of rampant fraud and pandemic challenges, but declare it all “immaterial”—as if the 
black swan event that was the pandemic was business-as-usual. See, e.g., RSUF 46-
55, 57-63, 67-69; see also id. 75, 77-78, 80-81; infra § VII.B. Plaintiffs then note that 
“Bank 
 
 (Opp. 17), but there is nothing unreasonable, much less in bad faith, about 
. Plaintiffs insinuate BANA was only concerned 
“for itself,” but concede it was 
 too—a 
laudable purpose, not a culpable one. Id. 18. None of this is evidence of bad faith. 
Plaintiffs further accuse BANA of “having done no analysis on the accuracy 
or reliability of CFF-1 in identifying fraud.” Opp. 17. But the record evidence of the 
fraud—particularly benefits and ATM fraud—that BANA’s antifraud experts 
observed is not genuinely disputed, as is BANA’s good-faith belief that the CFF’s 
indicators were 
 of such fraud. See, e.g., RSUF 46-55, 57-69, 75, 
77-85, 92, 94; see also infra § VII.B. Plaintiffs conclude by claiming that the 
 
 for the Credit Rescission Class yielded 
 “overturn rate” that BANA decided 
 
. Opp. 19. But this argument rests on hindsight, and Plaintiffs have no 
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supporting evidence—other than BANA’s 
—that the initial 
decision was wrong or unsupported. Supra § I.C; see also infra § VII.B. In any event, 
“subsequent remedial measures” cannot be deemed “culpable conduct.” FED. R. 
EVID. 407. BANA’s decision to be just as “aggressive” in correcting potential 
mistakes as in combatting the frauds in the first place is laudable, not culpable. 
II. 
Plaintiffs Cannot Establish a Violation of the CCPA or Resulting Harm. 
Plaintiffs’ CCPA arguments failed to show a material dispute as to the 
existence of a duty to implement EMV chips, or that any alleged harm was caused 
by the absence of a chip or unreasonable or willful conduct by BANA. 
Plaintiffs do not dispute that no statute, regulation, or rule explicitly required 
BANA to issue prepaid UI cards with EMV chips. MSJ 27. Nor do they dispute that 
BANA’s contract with EDD only required cards to be issued with “ISO 7811-
compliant high coercivity magnetic strip[es],” or that the cards issued by BANA met 
that requirement. See id.; RSUF 11, 13. Nor does the Opposition address the fact that 
the CFPB advised after BANA and EDD entered into the agreement that EMV chips 
were not required on any type of card. See RSUF 232A (immaterial response). 
Instead, Plaintiffs claim that the motion to dismiss order held that a failure to 
include EMV chips violated the CCPA. See Opp. 26. But the Court simply allowed 
discovery on the issue, and it confirmed that Plaintiffs cannot support their claim. See 
ECF 126 at 25-26. Critically, Plaintiffs cite no material facts showing what other 
companies did with respect to prepaid cards. See Razuki v. Caliber Home Loans, Inc., 
2018 WL 6018361, *1 (S.D. Cal. Nov. 15, 2018) (claim concerning “reasonable 
security procedures” failed because no allegation that “security measures [were] 
unreasonable by comparison to what other companies are doing”). Rather, they rely 
on their expert Cloninger, who claims that EMV chips were industry standard. See 
RSUF 232-34; ECF 652-2 (AF) 111.2 But Cloninger opined only that EMV chips 
 
2 Plaintiffs submitted the AF in direct violation of the Court’s explicit rules regarding 
factual statements and ECF 560, with no request for an exception. The Court should 
not countenance their disregard of the rules by considering the AF. 
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were industry standard for credit and non-prepaid debit cards. See PX 2 ¶¶ 47-56. 
And the materials Plaintiffs rely on support only that limited opinion.3  
To the extent Cloninger argues that prepaid cards do not merit their own 
classification, her unsupported opinion is refuted by undisputed facts. In 2019 and 
2020, the majority (65%-74%) of in-person prepaid transactions were completed 
without an EMV chip. RSUF 233 (immaterial response). This is in stark contrast to 
the purported 99% of transactions on Visa credit and debit cards that Cloninger 
claims were EMV-chipped (see PX 2 ¶ 54)—confirming that prepaid cards were 
handled differently. On this record, Plaintiffs cannot show that EMV chips were 
“industry standard” for prepaid cards. Their cases do not help them either. Opp. 27-
28. Neither addresses industry standards concerning “reasonable security 
procedures,” which is the standard under the CCPA. Cal. Civ. Code § 1798.150(a)(1).  
Plaintiffs also offered no material facts to establish that the purported stealing 
of PII and passcodes or the disputed ATM transactions were actually caused by the 
lack of an EMV chip. MSJ 28-29. Plaintiffs do not dispute that a PIN was required 
to use an EDD card at an ATM. RSUF 246; see also MSJ 28; Opp. 30. Plaintiffs also 
do not dispute that 
. RSUF 247-48; MSJ 
28.4 Nor do they dispute that account information can also be 
 
. See RSUF 244-45. Thus, Plaintiffs cannot show as a matter of law that the 
magstripe resulted in the combination of their PII and passcode being stolen—as 
required under the CCPA. Cal. Civ. Code §§ 1798.150(a)(1), 1798.81.5(d)(1)(A). 
Moreover, Plaintiffs have no facts that could prove that the magstripe was the actual 
 
3 The BANA documents Plaintiffs cite (e.g., PX 171) 
 
. See RSUF 232-34. The 2014 
Executive Order they cite concerned cards for certain federal benefits payments, not 
prepaid cards for state and UI benefits. Exec. Order No. 13681, 79 F.R. 63491 (Oct. 
23, 2014). After that order was issued, (1) EDD issued an RFP and entered into an 
agreement with BANA that did not require EMV chips, and (2) the CFPB explicitly 
stated that EMV chips were not required in any type of card. See RSUF 11, 13, 232A. 
4 The Opposition is internally inconsistent, but Plaintiffs ultimately concede (as they 
must) that 
. See Opp. 31; RSUF 247-48 (conceding that a 
separate device or act is required to capture a PIN). 
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cause of anyone’s alleged harm (i.e., the disputed ATM transactions). MSJ 29. 
Finally, summary judgment should be entered on Plaintiffs’ statutory damages 
claim because Plaintiffs cannot establish that BANA acted unreasonably or willfully. 
MSJ 29. Plaintiffs do not dispute that BANA complied with the EDD agreement. 
RSUF 11-13. Plaintiffs claim that bad faith can be inferred because EDD later opined 
in a March 2021 email (PX 201) and 2025 testimony that 
. Opp. 28 n.11. But there is 
no evidence that EDD informed BANA of 
, and contemporaneous 
documents and testimony show that 
. 
See, e.g., RSUF 14-15. Plaintiffs also claim that bad faith can be inferred because 
BANA noted the potential costs of implementing EMV chips. Opp. 31, 47-48. This 
makes no sense because the CFPB explicitly advised that expenses were something 
card providers could consider. MSJ 27-28; RSUF 232A. Further, the cost-benefit 
analyses that Cloninger conducts for her own clients consider precisely that: costs. 
See ECF 563-1 at 2-3. In any event, contemporaneous evidence indisputably shows 
EMV discussions were put on hold due to the massive expansion of the UI program 
and pandemic challenges (not costs), and that BANA and EDD 
. See RSUF 235-40; see also id. 34-42.5  
III.
Plaintiffs Cannot Recover on Their Negligence Claims.
Plaintiffs’ negligence arguments fail on the law and the facts. On the law,
Plaintiffs ask this Court to apply special relationship factors to avoid the economic 
loss rule despite the California Supreme Court’s holding in Sheen that the factors 
“do[] not apply when the plaintiff and defendant are in contractual privity for 
5 Statutory damages also are not available because Plaintiffs did not provide sufficient 
notice of their EMV-related CCPA claim. Plaintiffs cite PX 258, but offer no 
evidence that BANA actually received the alleged notice. See Opp. 31. PX 258 also 
did not explicitly state Mathews’ or Oosthuizen’s basis for their CCPA claim, nor did 
it demand that EMV chips be added. In any event, it is undisputed that BANA and 
EDD agreed to add EMV chips in March 2021, curing the EMV allegations weeks 
before Plaintiffs filed their amended complaint. See RSUF 238-39. 
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purposes of the suit at hand.” Sheen v. Wells Fargo Bank, N.A., 12 Cal. 5th 905, 937 
(2022) (emphasis added). Plaintiffs do not dispute contractual privity, but say that 
this case falls within one of the “two circumstances” that “Sheen expressly carved 
out” from the economic loss rule. Opp. 37. Plaintiffs are wrong.  
First, Plaintiffs say that Sheen recognized that “a duty of reasonable care may 
arise through statute,” clearing the way for Plaintiffs’ negligence per se claim based 
on the CCPA and GLBA. Opp. 37. Plaintiffs have no evidence of a CCPA breach or 
resulting harm. Supra § II. As Plaintiffs concede, the GLBA requires only that a 
financial institution have an appropriate information security program. See Opp. 38 
(citing 16 C.F.R. § 314.3). Plaintiffs’ only evidence that BANA did not meet this 
requirement is Cloninger’s unsupported opinion that EMV chips were “industry 
standard” for prepaid cards. Id. (citing PX 2); supra at 12-13. Plaintiffs cite no case 
holding that the GLBA requires either EMV chips or adherence to purported 
“industry standards,” and they do not dispute that BANA both had and complied with 
an information security program. See RSUF 249 (non-responsive counter). 
Second, Plaintiffs say this case is analogous to the insurance and professional 
services contracts that Sheen excepted from the economic loss rule because BANA 
was the “exclusive distributor of California UI benefits.” Opp. 38. That is false; 
benefits recipients could and did receive benefits via paper check. RSUF 2 
(conceding beneficiaries could “contact EDD to request paper checks instead of using 
the Bank-issued EDD debit card”). This does not give rise to a material dispute either.  
Plaintiffs’ negligence claims also fail because they cannot identify any 
recoverable harm. Plaintiffs provide no citation or explanation for the purported 
“disputes of fact” as to “recoverable damages” on the negligence claims. Opp. 38-
39. BANA has already paid class members their “EDD benefits” and “
 
,” which is all Plaintiffs seek on these claims. TAMCC ¶ 592; 
RSUF 168. The Opposition also identifies no material dispute on the availability of 
restitutionary disgorgement. Plaintiffs’ reliance on Alkayali v. Hoed, 2018 WL 
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3425980 (S.D. Cal. July 16, 2018), for the proposition that disgorgement is “available 
for breach of contract” (Opp. 34) is inapposite because the Court did not certify any 
classes on the contract claim.6 Their attempt to distinguish Gerlinger v. Amazon.Com, 
Inc., 311 F. Supp. 2d 838 (N.D. Cal. 2004), relies on splitting hairs about the 
difference between disgorgement as a remedy for “a quasi-contract claim for unjust 
enrichment” and “disgorgement as a remedy for . . . common law tort claims.” Opp. 
35 n.15. The justification supporting Gerlinger’s holding that “[a] plaintiff may 
recover for unjust enrichment only where there is no contractual relationship 
between the parties” is the same reason underlying the economic loss rule. 311 F. 
Supp. 2d at 856 (emphasis added). “[A]n action in quasi-contract is inappropriate” 
where “a valid express contract covering the same subject matter exists between the 
parties.” Id. This same reasoning precludes Plaintiffs’ negligence claims seeking 
recovery of unjust enrichment. In any event, there is no dispute that Plaintiffs lack 
evidence of profits to disgorge. See MSJ 34; ECF 567-1 at 23-25; ECF 564-1 at 22-
24. 
IV. 
There Is No Material Dispute That Plaintiffs’ Implied Duty Claim Fails.  
The Opposition’s arguments for the implied duty claim fail for similar reasons. 
Plaintiffs do not explain what damages are available beyond what they concede they 
already received. See Opp. 35 (claiming “fact disputes” on damages but identifying 
none). Plaintiffs’ argument that there “is a question of fact” as to whether the implied 
covenant was breached (Opp. 35) fails for the same reason their pleas for treble and 
punitive damages fail: Plaintiffs lack actual evidence of a “conscious and deliberate 
act.” Beatty v. PHH Mortg. Corp., 2021 WL 6116957, *6 (N.D. Cal. Dec. 27, 2021); 
see supra § I.D, infra §§ VII-VIII. Finally, it is Plaintiffs that misread Haggarty v. 
Wells Fargo Bank, N.A., 2012 WL 4742815 (N.D. Cal. Oct. 3, 2012). Plaintiffs 
 
6 Plaintiffs argue that claims they alleged but did not seek to certify or prove should 
nonetheless survive, but offer no case law in support. Opp. 32 n.14. They attempt to 
distinguish Abbit, but this Court granted summary judgment on the uncertified claim 
in that case too. See Abbit v. ING USA Ann. & Life Ins. Co., 2016 WL 4542204, *4-
5 (S.D. Cal. Aug. 39, 2016); see also MSJ 27 n.7 (citing cases). 
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attempt to draw a distinction between contracts that offer a party the “power to refrain 
from acting act all” (where they concede the covenant does not apply) and contracts 
that offer a party the “power to exercise discretion” (where they say the covenant 
does apply). See Opp. 36. But Haggarty turned on whether the discretion afforded by 
the contract is “express,” complete, or unfettered, regardless of whether the contract 
allows the party to act or refrain from acting. Id. *5-6. “[T]he implied covenant of 
good faith and fair dealing does not override [an] express grant of plenary discretion.” 
Id. There is no dispute that the Account Agreement expressly grants BANA unilateral 
discretion to freeze accounts. RSUF 28-29 (claiming “dispute” of facts, but stating 
no challenge to the Account Agreement’s freeze provisions). For this independent 
reason, the implied covenant claim cannot be sustained by the Account Freeze Class. 
V. 
There Is No Material Dispute on the Fiduciary Duty Claim. 
Plaintiffs’ arguments for the fiduciary duty claim also fail to raise a material 
dispute. Most obviously, there is nothing left that Plaintiffs can receive. Plaintiffs say 
“there are fact disputes about the amount of any set-off” of damages on this claim 
(Opp. 34), but identify none. Their claims for disgorgement and punitive damages 
fail for the reasons discussed above (§ III) and below (§§ VII-VIII).7 
Plaintiffs further concede that no duty exists absent evidence that BANA 
provided “specifically fiduciary services” or entered into a “special relationship” 
under Wallis v. Superior Ct., 160 Cal. App. 3d 1109, 1118 (1984). See MSJ 37; Opp. 
33. The undisputed evidence shows no such relationship existed. Plaintiffs suggest 
that the “Trust Account” established pursuant to the EDD Agreement was maintained 
“for the cardholders.” Opp. 33 (purporting to quote DX 39 at -2518). But the EDD 
Agreement includes no such language and explicitly states (as BANA represented) 
that the “Trust Account” for EDD prepaid funds would be used “[f]or the purpose of 
calculating [EDD’s] revenue share.” SUF 20.8 On the special relationship factors, 
 
7 Plaintiffs’ cases allowing disgorgement in fiduciary cases are irrelevant. See Opp. 
34. Neither involved claims where there was an express contract between the parties. 
8 Plaintiffs’ brief appears to be quoting their own language from RSUF 20, not the 
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Plaintiffs do not dispute that every EDD cardholder had the right to refuse BANA’s 
services and receive their benefits via paper check, 
. See RSUF 2-3. 
VI. 
Plaintiffs’ Due Process Claims Must Fail. 
A. 
BANA Was Not a State Actor. 
Plaintiffs fail to show a material dispute under the state actor tests. On public 
function, Plaintiffs emphasize that BANA had the “exclusive” right to provide 
“electronic benefits payment service for EDD.” Opp. 21 (quoting ECF 126 at 69). 
Plaintiffs’ own emphasis belies the fatal flaw: BANA was not, as Plaintiffs alleged, 
the exclusive provider of benefits, but only of electronic benefits—as EDD also made 
benefits available via paper check. RSUF 2. Further, Plaintiffs do not dispute that 
 
 
. RSUF 144-47 (
).9 
Plaintiffs ask the Court to ignore Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 
(1999), on the grounds that BANA “distributed public benefits to state beneficiaries,” 
Opp. 21, n. 7, but that is irrelevant. There, as here, the respondents challenged a 
government 
contractor’s 
discretionary 
decision—specifically, 
a 
workers’ 
compensation insurer’s determination that treatment was “reasonable and necessary.” 
Sullivan, 526 U.S. at 56-57. BANA’s determination to temporarily freeze certain 
bank accounts bearing reasonable indicia of fraud similarly falls within its 
“traditionally private prerogative.” Id. at 57.  
On joint action, Plaintiffs have no response to the fact that their failure to sue 
EDD suggests the absence of joint action. MSJ 39. Plaintiffs say EDD “facilitated” 
the account freezes by “
” 
(Opp. 22), but Plaintiffs do not challenge EDD-directed freezes: their class 
 
EDD Agreement (DX 39)—which speaks for itself. 
9 Cahoo is inapposite because, unlike here, the Michigan benefits recipients in that 
case had no other option to avoid “the State’s robo-fraud-detection system” and the 
vendors that administered it. Cahoo v. SAS Inst. Inc., 322 F. Supp. 3d 722, 784, 793 
(E.D. Mich. 2018), aff’d in part, rev’d in part on other grounds, Cahoo v. SAS 
Analytics Inc., 912 F.3d 887 (6th Cir. 2019). Cf. RSUF 2 (beneficiaries could get 
benefits via “paper checks”). 
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definitions exclude cardholders whose accounts were restricted at EDD’s direction. 
See ECF 494 at 97. Plaintiffs further say 
 
 (Opp. 22), but the evidence is the opposite—an EDD 
representative testified that 
 
, as the Account Freeze Class Representatives’ own facts 
confirm. See RSUF 136 (identifying fact as “[d]isputed” but failing to dispute 
testimony or 
), 144-47 (
). 
B. 
Cardholders Received All Procedural Protections Potentially Due. 
Setting aside the threshold failure, Plaintiffs also failed to show a material 
dispute as to the merits of their claim. As explained supra § I.D, the use of CFF-1 to 
rescind credits was a mistake, and Plaintiffs do not dispute that a mistake cannot 
support a due process violation. Robledo v. Bautista, 2023 WL 35026, *5 (D. Ariz. 
Jan. 4, 2023), aff’d 2025 WL 1202216 (9th Cir. Apr. 25, 2025). 
Plaintiffs do not dispute that the Court has already recognized that “BANA, 
acting on behalf of the State of California, obviously has a strong interest in 
preventing fraud.” ECF 126 at 73; see MSJ 42. Nor do they address the Ninth and 
Fifth Circuit holdings that the government’s interests in preventing fraud and 
protecting public confidence in the banking system were sufficient to overcome the 
general requirement of a pre-deprivation hearing and notice. See MSJ 42-43. Indeed, 
Plaintiffs do not dispute—and in fact, themselves quote—the Supreme Court’s 
language in Mallen that pre-hearing deprivation can be appropriate where “there is 
little likelihood that the deprivation is without basis” and a “substantial assurance 
that the deprivation [was] not baseless or unwarranted.” Opp. 23-24 (quoting FDIC 
v. Mallen, 486 U.S. 230, 244-45 (1988)). Plaintiffs quibble over whether BANA’s 
reasons for taking the actions it did were “sufficient[].” Opp. 23. But they do not, and 
cannot, suggest that the challenged deprivations were “without basis” entirely, which 
is the relevant question under Mallen. 486 U.S. at 244-45. 
Plaintiffs also cite no cases that support that BANA’s post-deprivation 
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requisite scienter—malice or oppression. Cal. Civ. Code § 3294(b) places a further 
limitation on punitives in cases against a “corporation,” allowing them only when the 
malice or oppression was “perpetrated, authorized, or knowingly ratified by an 
officer, director, or managing agent.” ECF 487 at 10; see also McNutt v. Veolia 
Transp. Servs., Inc., 2010 WL 11507371, *3 (C.D. Cal. Feb. 1, 2020) (in case against 
“a corporate employer,” “Plaintiffs must meet two elements for their request for 
punitive damages”); MV Universal, LLC v. Unisys Corp., 2013 WL 12142616, *2 
(C.D. Cal. Jan. 2, 2013) (same). Plaintiffs have no material facts to satisfy either. 
Recognizing that the evidence flatly refutes their theory that BANA’s highest 
executive officers personally approved the fraud filter (MSJ 46-49), Plaintiffs suggest 
they need not substantiate § 3294(b) because they “challenge a series of Bank 
policies,” rather than “isolated acts.” Opp. 49. This directly contradicts the Court’s 
finding, based on Plaintiffs’ prior arguments, that evidence in support of punitive 
damages “can only be obtained” from BANA’s CEO and former CFO. ECF 487 at 
3. Regardless, Plaintiffs are wrong. There is no “corporate policy” exception to 
3294(b), nor do Plaintiffs’ cited cases support one here. The products liability cases 
cited by Plaintiffs show only that courts have found evidence to support punitive 
damages where long-standing corporate policies resulted in death. See Opp. 48-49.13 
No such facts exist here. Indeed, the deliberate design of a vehicle to rollover and a 
decades-long coverup of cancer risk are far afield from the short-lived fraud strategy 
developed in response to a black swan event that Plaintiffs challenge in this case. 
Plaintiffs’ insurance cases are equally distinguishable; BANA indisputably was not 
the insurer of class members’ benefits. See Opp. 49 n.27; RSUF 1.  
 
13 In Romo v. Ford Motor Co., a car manufacturer sold a car with “a known propensity 
to roll over and, while giving the vehicle the appearance of sturdiness, consciously 
decid[ed] not to provide adequate crush protection to properly belted passengers.” 99 
Cal. App. 4th 1115, 1141 (2002). Similarly, in Lannes v. CBS Corp., asbestos 
manufacturer “would have known in 1936 that asbestos can cause the disease 
asbestosis,” but nonetheless “failed to attach any warnings about the presence or 
dangers of asbestos in its products until the 1980s.” 2013 WL 21225425, *5-6 (C.D. 
Cal. Jul. 3, 2013) (emphasis added).  
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Plaintiffs’ new theory that other BANA employees are “managing agents” 
under § 3294(b) is of no help and, again, is flatly inconsistent with their apex 
deposition position. There is no evidence that anyone at BANA acted with the 
malicious or oppressive intent required by § 3294(a). See Opp. 49-50. Plaintiffs 
argued that they could only get such evidence from Moynihan and Montag. See MSJ 
46. But their testimony disproved Plaintiffs’ speculation, so now Plaintiffs seek to 
dismiss the explicit testimony from Moynihan and Montag that 
 
. See RSUF 110-113 
(identifying facts as “[d]isputed” but not challenging underlying testimony). 
Plaintiffs pivot and claim eight other employees were sufficiently “high level” to 
satisfy § 3294(b), but they offer no evidence that any of them intentionally engaged 
in the “despicable conduct” required to establish malice or oppression under 
§ 3294(a) either. See Johnson, 37 Cal. App. 5th at 332-33; MSJ 46-49; infra § VII.B. 
B. 
Plaintiffs Misdirect, But Identify No Material Dispute. 
Plaintiffs ignore or declare irrelevant BANA’s undisputed facts that 
demonstrate Plaintiffs cannot get punitives. Opp. 39-50; cf. MSJ 46-49. 
CFF-1. Plaintiffs’ argument that the use of CFF-1 to rescind permanent credits 
was intentional is unsupported. Supra § I.D. It was a mistake, and Plaintiffs do not 
dispute that “a mistake . . . cannot support punitive damages.” Chamberlin v. Hartog, 
Baer & Hand, APC, 2022 WL 1502587, *7 (N.D. Cal. May 12, 2022). Further, even 
if there were a dispute as to whether the rescission was a mistake (and there is not), 
Plaintiffs have no evidence that the purported decision was made with the requisite 
scienter, much less that it was made by a BANA managing agent with such intent.  
As to the Claim Denial Class, it is undisputed that: (1) the CFF was put in place 
during a once-in-a-lifetime pandemic to stem unprecedented fraud attacks; 
(2) BANA’s antifraud experts believed and represented that the CFF would likely be 
 at identifying fraud; (3) 
 supported this; 
and (4) BANA implemented procedures to balance interests of legitimate 
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EMV. Like the call centers, Plaintiffs have no evidence that there was any 
direction from a BANA managing agent not to include EMV chips to save money. 
See supra § II; MSJ 49. Plaintiffs do not dispute that the CFPB explicitly said that 
financial institutions could consider costs in deciding whether to implement EMV 
chips. RSUF 232A. They offer no explanation for how BANA’s purported policy to 
delay EMV chips due to costs (even if it were true, which it is not) could possibly 
constitute malice or oppression when the CFPB told financial institutions they could 
make such a decision. Plaintiffs also ignore the practical challenges that made 
implementation of EMV impossible at the beginning of the class period with or 
without EDD approval (and they offer no evidence to dispute BANA’s belief that 
such approval was required). See supra § II; see also RSUF 237.  
VIII. Plaintiffs Cannot Obtain Punitives on Their Federal Due Process Claim.  
Plaintiffs concede that their federal punitives plea requires them to show that 
BANA’s actions were driven by “reckless or callous indifference.” Opp. 40. The 
rescission was unintentional (supra § I.D), and Plaintiffs do not dispute that federal 
punitives are “not assessed . . . for mere negligence or mistake.” Aguilar v. Dixon, 
1995 WL 319621, *3 (N.D. Ill. May 25, 1995). And again, Plaintiffs do not actually 
challenge the facts BANA proffered showing its attempts to balance the interests of 
potentially legitimate cardholders in the Account Freeze Class. Plaintiffs do not 
dispute that 
 
 
 MSJ 50. Plaintiffs 
argue, instead, that BANA’s procedures were not good enough, and 
 
 Opp. 
44-46. Again, Plaintiffs’ hindsight challenges do not show reckless or callous intent. 
CONCLUSION 
For each and all of the foregoing reasons, and the reasons stated in the MSJ, 
summary judgment should be granted for BANA on the aforementioned claims. 
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Dated:  February 20, 2026
Respectfully submitted,
By: s/James W. McGarry
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 
 
MATTHEW L. RIFFEE (pro hac vice) 
MRiffee@goodwinlaw.com 
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com 
KEITH LEVENBERG (pro hac vice) 
KLevenberg@goodwinlaw.com 
GOODWIN PROCTER LLP 
1900 N Street NW  
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 10018 
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
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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.
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that I electronically filed the foregoing with the clerk of the 
court for the United States District Court for the Southern District of California by 
using the CM/ECF system on February 20, 2026.  I further certify that all participants 
in the case are registered CM/ECF users and that service will be accomplished by the 
CM/ECF system.  I certify under penalty of perjury that the foregoing is true and 
correct. 
 
 
Dated:   February 20, 2026
s/James W. McGarry
JAMES W. MCGARRY 
 
 
 
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