1. Reply Memorandum of Points
- Date
- 2022-01-31
Source document: 1. Reply Memorandum of Points; document type: Reply brief (request for judicial notice).
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REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES W. MCGARRY (pro hac vice) JMcGarry@goodwinlaw.com YVONNE W. CHAN (pro hac vice) YChan@goodwinlaw.com GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Fax: +1 617 523 1231 Attorneys for Defendant BANK OF AMERICA, N.A. [ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA - SAN DIEGO DIVISION IN RE: BANK OF AMERICA CALIFORNIA UNEMPLOYMENT BENEFITS LITIGATION Case No. 21-MD-02992-LAB-MSB DEFENDANT BANK OF AMERICA, N.A.’S REPLY IN SUPPORT OF ITS REQUEST FOR JUDICIAL NOTICE AND OPPOSITION TO PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE Date: January 31, 2022 Time: 11:30 a.m. Ctrm: 14A - 14th Floor Judge: Hon. Larry Alan Burns Filed/Lodged Concurrently with: 1. Reply Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.789 Page 1 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 1 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs’ Opposition to BANA’s Request for Judicial Notice (ECF No. 90-2; “Pl. RJN Opp.”) and competing Request for Judicial Notice (ECF No. 90-1; “Pl. RJN”) do not raise any issues that materially affect the Court’s consideration of BANA’s Motion to Dismiss (ECF No. 84). Plaintiffs offer their own versions of the Account Agreement and the EDD Agreement, but do not establish that their versions should control over BANA’s, or that there are any differences material to the issues in the Motion to Dismiss. With respect to the Account Agreement (Chestnut Decl. (ECF No. 84-3) Ex. 1), Plaintiffs do not show that any of them actually reviewed (and thereby agreed to) the website version they submit, rather than the version authenticated by BANA’s witness; in any event, the only difference between the two is the governing law (North Carolina versus California), and contract law in both states is substantially the same for purposes of the issues raised in BANA’s Motion to Dismiss. As for the EDD Agreement (Chestnut Decl. Ex. 2), Plaintiffs similarly identify no material difference between the two versions: BANA’s version includes redlines in the EDD RFP that is an exhibit to the agreement but the substance of the document is the same. Plaintiffs’ version also attaches an outdated copy of BANA’s response to the RFP but the cited pages are the same. Finally, with respect to the Letter Agreement between BANA and EDD (Chestnut Decl. Ex. 3), that document amends certain terms of the EDD Agreement—which is the subject of two of Plaintiffs’ claims—and Plaintiffs cannot ignore it simply because they do not like its terms. I. THE ACCURACY AND AUTHENTICITY OF EXHIBIT 1 IS NOT SUBJECT TO REASONABLE DISPUTE. The Court should take judicial notice of the version of the Account Agreement attached to Mr. Chestnut’s declaration, as that is the only version of this contract that has been authenticated by a BANA witness as the applicable agreement between BANA and EDD cardholders. See Chestnut Decl., Ex. 1. Plaintiffs have not provided a basis for relying instead on the version they found on the EDD Debit Card Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.790 Page 2 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 2 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 website (Danitz Decl. (ECF No. 90-3), ¶ 3), as they do not establish that any of the Plaintiffs ever visited that website or viewed the website version of the Account Agreement such that they believed the website version governed their relationship with BANA. See Chestnut Decl., Ex. 1, at 1 (cardholders agree to be bound by terms and conditions “[b]y using or allowing another to use” their EDD Debit Card); Zero Motorcycles Inc. v. Nikola Motor Co., 2018 WL 3009126, at *3 (N.D. Cal. June 14, 2018) (denying request for judicial notice of updated website and press release where “there [was] no indication . . . that customers viewing the old version of the website or press release would necessarily have seen the new versions”). As Plaintiffs acknowledge, “[t]he two versions are substantively the same, including the same effective date, except for the governing law provision.” Opp. Def.’s Mot. Dismiss Master Consol. Compl. (“MTD Opp.”) (ECF No. 90) at 14 n. 19; Pl. RJN. Opp. at 2 n. 1; Pl. RJN. at 2. BANA’s version states that North Carolina law governs the Account Agreement, while Plaintiffs’ version has a California governing law provision. Pl. RJN Opp. at 2. This difference does not call into question the authenticity of BANA’s version, as Plaintiffs suggest—indeed, of the 267 Plaintiffs in this case, none have alleged that they received an Account Agreement from BANA that was different from Exhibit 1 to Mr. Chestnut’s declaration. In any event, as BANA has noted—and Plaintiffs do not contest—there is no material difference between North Carolina and California law for purposes of the issues raised in BANA’s Motion to Dismiss. See Mem. of Pts. & Auth. In Support of Mot. to Dismiss (ECF No. 84-1) (“Mem.”) (ECF No. 84-1) at 9 n. 11. Thus, the difference in governing law provisions does not preclude the Court from taking judicial notice of BANA’s version for purposes of the Motion to Dismiss. See Phillips v. P.F. Chang’s China Bistro, Inc., 2015 WL 469409, at *2 (N.D. Cal. Aug. 6, 2015) (taking judicial notice of a menu over the plaintiff’s objection that there was another version with irrelevant differences). Alternatively, the Court can take Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.791 Page 3 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 3 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 judicial notice of both versions of the Account Agreement. See Selznick v. Wells Fargo Bank, N.A., 2015 WL 4069076, *2 (C.D. Cal. July 1, 2015) (taking judicial notice of the parties’ “somewhat different” versions of the same document where the relied-upon portion was the same, as it did “not matter whether the Court relie[d] on [Defendant’s] or Plaintiff’s version”). II. THE ACCURACY AND AUTHENTICITY OF EXHIBIT 2 IS NOT SUBJECT TO REASONABLE DISPUTE. The differences between the two competing versions of the EDD Agreement are likewise immaterial for purposes of BANA’s Motion to Dismiss. Plaintiffs note that BANA’s version contains redlining in the cover page of EDD’s Request for Proposal (“RFP”), which is an exhibit to the EDD Agreement. Pl. RJN. Opp. at 3. Plaintiffs further assert that BANA’s version is “facially different” from the version EDD provided Plaintiffs (id.), but do not identify any facial differences other than the redlining. The redlining in the EDD RFP included in BANA’s version of the EDD Agreement does not prevent the Court from taking judicial notice of that document. The redlining, which appears in the cover page of the RFP, does not affect the substance of the RFP excerpts submitted to the Court—both versions reflect the same date (August 14, 2015), with the only difference being that BANA’s document has the prior date crossed out. Compare Chestnut Decl., Ex. 2, at 5, with Danitz Decl., Ex. B, at 5. There are no differences, formatting or otherwise, in the RFP excerpts that the parties have submitted. Pl. RJN at 2 (“Exhibit B … contains equivalent excerpts of the pages of the version submitted by BofA”). The only other difference in the documents submitted by the parties relates to another exhibit to the EDD Agreement—the proposal BANA submitted in response to the EDD RFP. Plaintiff’s version attaches a BANA proposal dated July 10, 2015— before the final RFP (which both parties submit, with the redlining differences noted above), which is actually dated about a month later, August 14, 2015. BANA’s Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.792 Page 4 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 4 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 version of the EDD Agreement attaches the Bank’s August 21, 2015 proposal from a week after the RFP. Compare Chestnut Decl., Ex. 2, at 7, with Danitz Decl., Ex. B., at 8. Plaintiffs’ version clearly attaches an outdated version of the BANA proposal, which cannot be the controlling document given that it was submitted before the RFP, and therefore there are doubts about the authenticity of Plaintiffs’ version of the EDD Agreement. In any event, the excerpts of BANA’s proposal that each party submits are substantively identical, save for a footer in Plaintiffs’ version that does not appear in BANA’s version. Because Plaintiffs do “not dispute the accuracy of the information contained” in BANA’s version of the EDD Agreement—and in fact seek to rely on that very same information—BANA’s request for judicial notice of Exhibit 2 to the Chestnut Declaration should be granted. Phillips, 2015 WL 4694049, at *2.1 III. EXHIBIT 3 IS AN AMENDMENT TO THE EDD AGREEMENT AND IS THEREFORE PROPERLY SUBJECT TO JUDICIAL NOTICE. Finally, Plaintiffs’ objection to the Letter Agreement that modified the EDD Agreement must be disregarded. As Plaintiffs admit, the EDD Agreement itself is incorporated by reference in the Master Consolidated Complaint (“MCC”). Pl. RJN at 1; Pl. RJN Opp. at 2-3. The case law is clear that a court can and should consider subsequent amendments and modifications to a contract that forms the basis of claims in the complaint. See, e.g., Malley v. San Jose Midtown Dev. LLC, 2021 WL 1312792, at *4 (N.D. Cal. Apr. 8, 2021) (considering an agreement and “its related amendments,” which formed “one agreement that the Court chooses to consider in its entirety”); Congrove v. W. Mesquite Mines, Inc., 2008 WL 11337256, at *2 (S.D. Cal. Dec. 10, 2008) (granting judicial notice to a document and the “corrections and amendments thereto”). The fact that Plaintiffs chose not to discuss the Letter 1 Dual Diagnosis Treatment Center, Inc. v. Blue Cross of California, 2016 WL 6892140 (C.D. Cal. Nov. 22, 2016), is not to the contrary. There the court declined to take judicial notice of draft documents where the redlining indicated that the document was still being edited. Id. at *23. Here, by contrast, there is no material difference between BANA’s excerpts and Plaintiffs’ excerpts. See supra. Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.793 Page 5 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 5 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement in their MCC (despite having had the Letter Agreement at least months before they filed the MCC in August) does not allow them to shield the Letter Agreement from the Court’s consideration. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (prohibiting “plaintiffs from selecting only portions of documents that support their claims, while omitting portions of those very documents that weaken—or doom—their claims”). Because the Letter Agreement modifies the EDD Agreement, it is part and parcel of that Agreement, and is therefore properly subject to judicial notice along with the EDD Agreement. As for Plaintiffs’ assertion that the Letter Agreement raises factual issues that cannot be resolved on a motion to dismiss (RJN Opp. at 4), contract interpretation is a question of law. Irwin v. Carpenters Health & Welfare Tr. Fund for Cal., 745 F.2d 553, 555 (9th Cir. 1984) (“The proper interpretation of language on the face of a contract is a matter of law . . . .”). To the extent Plaintiffs are simply objecting that they do not know whether the EDD Agreement was subsequently modified, their lack of awareness about developments in the contracting relationship further underscores the conclusion that they are not third-party beneficiaries whose enforcement of the contract would be consistent with the parties’ reasonable expectations. See Mem. at 22. CONCLUSION For the reasons stated above, BANA respectfully requests that the Court grant its Request for Judicial Notice and deny Plaintiffs’ Request for Judicial Notice. Dated: December 15, 2021 Respectfully submitted, By: s/_Yvonne W. Chan_________________ JAMES W. MCGARRY (pro hac vice) JMcGarry@goodwinlaw.com YVONNE W. CHAN (pro hac vice) YChan@goodwinlaw.com GOODWIN PROCTER LLP 100 Northern Avenue Boston, MA 02210 Tel.: +1 617 570 1000 Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.794 Page 6 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 6 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fax: +1 617 523 1231 THOMAS M. HEFFERON (pro hac vice) THefferon@goodwinlaw.com GOODWIN PROCTER LLP 1900 N St. NW Washington, DC 20036 Tel: +1 202 346 4000 Fax: +1 202 346 4444 LAURA A. STOLL (SBN 255023) LStoll@goodwinlaw.com GOODWIN PROCTER LLP 601 South Figueroa Street, 41st Floor Los Angeles, California 90017 Tel.: +1 213 426 2500 Fax: +1 213 623 1673 JANICE P. BROWN (SBN 114433) jbrown@meyersnave.com ARLENE R. YANG (SBN 297450) ayang@meyersnave.com MEYERS NAVE 600 B Street, Suite 1650 San Diego, CA 92101 BARRY W. LEE (SBN 088685) bwlee@manatt.com MANATT PHELPS & PHILLIPS LLP One Embarcadero Center, 30th Floor San Francisco, CA 94111 Tel.: +1 415 291 7450 Fax: +1 415 291 7474 Attorneys for Defendant BANK OF AMERICA, N.A. Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.795 Page 7 of 8 REPLY AND OPPOSITION REGARDING REQUEST FOR JUDICIAL NOTICE 7 CASE NO. 21-MD-02992-LAB-MSB 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 December 15, 2021. 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. Executed: December 15, 2021 s/ Yvonne W. Chan Yvonne W. Chan Case 3:21-md-02992-GPC-MSB Document 92-1 Filed 12/15/21 PageID.796 Page 8 of 8
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