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Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
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JOSEPH W. COTCHETT (SBN 36324)
jcotchett@cpmlegal.com
BRIAN DANITZ (SBN 247403)
bdanitz@cpmlegal.com
KARIN B. SWOPE (Pro Hac Vice)
kswope@cpmlegal.com
ANDREW F. KIRTLEY (SBN 328023)
akirtley@cpmlegal.com
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Fax: (650) 697-0577
MICHAEL RUBIN (SBN 80618)
mrubin@altber.com
STACEY M. LEYTON (SBN 203827)
sleyton@altber.com
MATTHEW MURRAY (SBN 271461)
mmurray@altber.com
CONNIE K. CHAN (SBN 284230)
cchan@altber.com
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Fax: (415) 362-8064
Co-Lead Counsel for Plaintiffs and the Proposed Class
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 3:21-md-02992-LAB-MSB
DECLARATION OF ANDREW F.
KIRTLEY IN SUPPORT
PLAINTIFFS’ EX PARTE
APPLICATION FOR LEAVE TO
FILE MOTION FOR
RECONSIDERATION
This Document Relates to All Actions
Judge:
Hon. Larry Alan Burns
Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1772 Page
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Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
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I, ANDREW F. KIRTLEY, declare as follows:
1.
I am a partner with the law firm of Cotchett, Pitre & McCarthy, LLP,
Co-Lead Counsel for Plaintiffs and the proposed class in this action. I submit this
declaration in support of Plaintiffs’ Ex Parte Application for Leave to File a Motion
for Reconsideration (“Ex Parte Application”) concerning the dismissal of Plaintiffs’
Unfair Competition Law (“UCL”) claim with prejudice. See Dkt. 126 (“MTD Order”)
at 31–33, 75. I make this declaration of my own personal knowledge and, if called to
testify as a witness, could and would testify competently to the matters stated herein.
2.
As required by S.D. Cal. Civ. L.R. 7.1(i)(1), this declaration sets forth
the material facts and circumstances surrounding (a) each prior motion, application,
or petition for relief that has been decided by any judge (i.e., in this case, the Bank’s
October 2021 motion to dismiss, the parties’ subsequent briefing of that motion, and
the Court’s resulting MTD Order dated May 25, 2023), and (b) any subsequent
motion, application, petition that is made for the same relief in whole or in part (i.e.,
in this case, the Ex Parte Application that accompanies this declaration). As of the
filing of this declaration, no new or different facts or circumstances exist which did
not exist at the time the above-referenced motion to dismiss, motion to dismiss
briefing, or the Court’s MTD Order were filed. Rather, Plaintiffs seek leave to file a
motion for reconsideration based on clear error.
3.
On August 17, 2021, Plaintiffs filed their Master Consolidated
Complaint (“MCC”) (Dkt. 72) in this multidistrict litigation. The MCC included a
UCL claim challenging the Bank’s practices as “unlawful” and “unfair.” MCC
¶¶575–84; see Cal. Bus. & Prof. Code §17200. In connection with their UCL claim,
Plaintiffs sought restitution and prospective injunctive relief, including “an order
making the existing Preliminary Injunction permanent.” MCC ¶584, Prayer.
4.
On October 1, 2021, the Bank moved to dismiss Plaintiffs’ UCL claim
for lack of equitable jurisdiction, arguing Plaintiffs had “an adequate remedy at law.”
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Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
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Dkt. 84-1 at 32:1. On November 15, 2021, Plaintiffs opposed, including on the
ground that their UCL claim sought prospective injunctive relief to permanently
enjoin the Bank’s “continued implementation of its challenged business practices.”
Dkt. 90 at 43:13–18 (citing, as an example, MCC ¶111). Plaintiffs also requested leave
to amend if the Bank’s motion were granted. Id. at 14:3–4, 50:12–15. On December
15, 2021, the Bank filed a reply brief that did not respond to Plaintiffs’ argument that
a damages remedy could not prevent future harm. See Dkt. 92 at 19:27–20:23.
5.
On May 25, 2023, the Court ruled that Plaintiffs’ MCC “fails to state a
UCL claim” under Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir.
2020), because it “doesn’t allege inadequate legal remedies.” MTD Order at 33:8,
33:11–13. The Court then dismissed the UCL claim in its entirety “with prejudice,”
id. at 33:14–15, 75:3–4, without stating why it denied leave to amend or why the
dismissal was with prejudice. Elsewhere in the MTD Order, the Court allowed claims
that “seek prospective injunctive relief” to proceed. Id. at 46:4–5.
6.
On June 23, 2023, Plaintiffs filed their First Amended Master
Consolidated Complaint (“FAMCC”) (Dkt. 136), which maintained the same
paragraph numbering as the MCC, while expressly noting any claims or legal
theories that the Court dismissed in its MTD Order. See FAMCC at 1 n.1. As relates
to the dismissed UCL claim, the FAMCC notes that the Court “dismissed this claim
with prejudice for failure to allege inadequate legal remedies,” but noted that
“Plaintiffs intend to seek leave to file a motion to reconsider that ruling.” FAMCC at
282 n.34.
7.
On June 19, 2023, Co-Lead Counsel for Plaintiffs (Michael Rubin)
emailed the Bank’s counsel (James McGarry) that Plaintiffs “plan to file an
application for leave to file a motion for reconsideration re the UCL claim,” and that
Plaintiffs would like to meet and confer on that issue.
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Declaration of Andrew F. Kirtley ISO Plaintiffs’ Ex Parte Application for Leave to
File Motion for Reconsideration; Case No. 3:21-md-02992-LAB-MSB
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8.
On June 20, 2023, Co-Lead Counsel for Plaintiffs (Michael Rubin) and
the Bank’s counsel (James McGarry) met and conferred by telephone regarding the
anticipated motion for reconsideration in an attempt to informally resolve the issue.
On that call, Mr. Rubin summarized the four arguments that Plaintiffs were intending
to advance in a motion to reconsider the dismissal of the UCL claim (i.e., the same
four arguments set forth in Plaintiffs’ Ex Parte Application). In response, Mr.
McGarry acknowledged having heard Mr. Rubin’s summary of Plaintiffs’ intended
arguments and indicated that he thought Plaintiffs had met their meet-and-confer
obligations.
I declare, under penalty of perjury, that the foregoing is true and correct.
Executed this 21st day of June 2023 at Burlingame, California.
/s/ Andrew F. Kirtley
ANDREW F. KIRTLEY
Case 3:21-md-02992-GPC-MSB Document 141-1 Filed 06/21/23 PageID.1775 Page
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