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Plaintiffs’ Memorandum in Support of Motion to Compel Compliance with
Subpoena for the Production of Documents Case No. 21MD2992 LAB (MSB)
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BOTTINI & BOTTINI, INC.
Francis A. Bottini, Jr. (SBN 175783)
Albert Y. Chang (SBN 296065)
Aaron P. Arnzen (SBN 218272)
7817 Ivanhoe Avenue, Suite 102
La Jolla, California 92037
Telephone:
(858) 914-2001
Facsimile:
(858) 914-2002
E-mail: fbottini@bottinilaw.com
achang@bottinilaw.com
aarnzen@bottinilaw.com
Counsel for Class Representative Plaintiff Lindsay
McClure
[Additional Counsel Listed Below]
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
The Honorable Michael S. Berg
Plaintiffs’ Memorandum of Points
and Authorities in Support of Ex
Parte Motion to Compel Compliance
with Subpoena for the Production of
Documents
This Document Relates to All Actions
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Plaintiffs’ Memorandum in Support of Motion to Compel Compliance with
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INTRODUCTION
Plaintiffs’ counsel properly served third-party TTEC Government Solutions,
LLC, (“TTEC”) with a valid subpoena for the production of documents in this multi-
district litigation (“MDL”). TTEC, through counsel, initially met and conferred with
Plaintiffs’ counsel about responding to the subpoena, but then TTEC became non-
responsive. Having complied with the applicable Chambers Rules of the assigned
Magistrate Judge, Plaintiffs now bring this motion to compel TTEC’s compliance with
the subpoena.
Because this is an MDL case, this Court has jurisdiction to hear and decide the
motion to compel under 28 U.S.C. § 1407, despite the fact that TTEC appears to be
headquartered in Colorado. As the Sixth Circuit has noted, “[a] judge presiding over
an MDL case … can compel production by an extra-district nonparty; enforce, modify,
or quash a subpoena directed to an extra-district nonparty; and hold an extra-district
nonparty deponent in contempt, notwithstanding the nonparty’s physical situs in a
foreign district where discovery is being conducted.” United States ex rel. Pogue v. Diabetes
Treatment Centers of Am., Inc., 444 F.3d 462, 467-69 (6th Cir. 2006) (analyzing § 1407).
Given the valid subpoena at issue here, this Court’s jurisdiction over this
motion, and the discussion below, the Court should grant Plaintiffs’ motion to compel
compliance with the subpoena served on TTEC.
FACTUAL BACKGROUND
This MDL concerns Bank of America, N.A.’s (“BANA”) administration of
prepaid debit cards and related accounts through which California distributed
unemployment and other public benefits on behalf of this state’s Economic
Development Department (“EDD”). BANA’s administrative efforts were rife with
glaring problems that harmed the intended beneficiaries, including (among other
things) beneficiaries being blocked from accessing their accounts and benefits, and the
theft of their identities and other personally identifiable information. See generally ECF
No. 136 (First Amended Master Consolidated Complaint). During the relevant period,
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BANA contracted with third party TTEC to run the call centers that handled customer
service calls from EDD beneficiaries about BANA’s prepaid debit cards and accounts.
A number of putative class action cases were filed in multiple districts
surrounding BANA’s administration of EDD and related benefits. ECF No. 1
(Transfer Order). For example, on May 17, 2021, the District Court for the Northern
District of California entered an Order re: Preliminary Injunction. Therein, the court
found that “plaintiffs have demonstrated a strong likelihood of success on their claims
that Bank of America (BofA) has violated, and continues to violate, the Electronic
Fund Transfers Act by failing to conduct an adequate, good faith investigation when
cardholders report unauthorized charges, and often simply freezing cardholder
accounts based on a faulty screening process.” See Declaration of Aaron P. Arnzen
(“Arnzen Decl.”) (submitted herewith), Ex. 5 (PI Order, Yick v. Bank of America, N.A.,
Case No. 21CV00376-VC (N.D. Cal.), ECF No. 89).
On June 4, 2021, the United States Judicial Panel on Multidistrict Litigation
issued an order pursuant to § 1407 that these various cases be “transferred to the
Southern District of California and, with the consent of that court, assigned to the
Honorable Larry A. Burns for coordinated or consolidated pretrial proceedings.” ECF
No. 1, at 2.
After discovery was underway, Class Representative Plaintiff Lindsay McClure
issued a subpoena for the production of documents to TTEC Holdings, Inc. about the
call centers that were ground zero for many of BANA’s EDD-related shortfalls. Id.
Ex. 1. The subpoena was served on TTEC Holding’s registered agent for service of
process on October 3, 2023. Id. The law firm of Perkins Coie, counsel for TTEC
Holdings contacted Plaintiff’s counsel on November 3, 2023, stating that TTEC
Holdings is a holding company with no employees, TTEC Holdings does not have
documents responsive to the subpoena, and responsive documents are not in the
possession, custody or control of TTEC Holdings. Counsel for TTEC Holdings also
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stated that the “correct entity on which to serve a revised subpoena was TTEC
Government Solutions, LLC” (“TTEC”), and agreed to accept service of a revised
subpoena issued to TTEC. Arnzen Decl., Ex. 2. Plaintiff’s counsel served a revised
subpoena on TTEC by emailing the subpoena to counsel on November 9, 2023. Id.
Ex. 3. The revised subpoena called for TTEC to produce responsive documents to
Plaintiffs’ counsel Bottini & Bottini, Inc.’s office location in the Southern District of
California by December 8, 2023. Id.
TTEC continued to engage the law firm of Perkins Coie in connection with the
subpoena. Plaintiffs’ counsel was initially able to meet and confer with TTEC’s
attorneys. However, despite multiple attempts to follow up since November 29, 2023,
TTEC’s attorneys have been unresponsive. Arnzen Decl., Ex. 4. Although the
subpoena instructed TTEC to produce documents by December 8, 2023, no
documents have been produced and no objections or other explanations have been
made. Id.
Pursuant to Civil Chambers Rule IV, Plaintiffs’ counsel contacted the chambers
of the Honorable Magistrate Judge Michael S. Berg, which indicated that Plaintiffs were
authorized to file a motion to compel. The present motion follows.
ARGUMENT
I.
The Subpoena Seeks Materials that are Relevant to Issues Central to
this Litigation
This case concerns BANA’s egregious failures to meet its obligations under
EDD’s benefits payment program. ECF No. 136, at p. 1. EDD provides
unemployment insurance benefits to eligible Californians. Id. ¶ 1. The number of
EDD beneficiaries increased dramatically during the COVID-19 pandemic. Id. ¶ 74.
EDD did not distribute benefits directly to beneficiaries; instead, it awarded BANA a
contract to distribute benefits on behalf of EDD through bank-issued and bank-
administered prepaid debit cards that are linked to individual bank depository accounts.
Id. ¶¶ 39, 45. BANA’s striking failures in administering this program violated the law
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and harmed plaintiffs here, who were EDD beneficiaries. Id. ¶ 2. Among other things,
BANA failed to protect beneficiaries’ personally identifiable information (“PII”), failed
to investigate fraud claims made by beneficiaries, and blocked beneficiaries’ access to
funds in their accounts. BANA’s failures weren’t limited to its internal processes, but
instead extended to third-party customer service call centers. Specifically, BANA
contracted with third party companies, including TTEC, to staff and manage call
centers to handle questions, inquiries, and fraud claims from EDD beneficiaries.
The complaint alleges, among other things, that BANA:
Failed to ensure that EDD beneficiaries’ PII was appropriately handled and
not, for example, misappropriated by bank subcontractors, including service
representatives and other call center agents. Id. ¶ 2.
Failed to implement adequate and reasonable protections to permit prompt
submission of fraud claims. Id. ¶ 3.
Failed to provide provisional access to benefits while BANA investigated
fraud claims. Id.
Failed to reimburse beneficiaries for funds stolen from their accounts (as
BANA’s cardholder agreement required). Id. ¶ 4.
Implemented customer service practices that frustrated and obstructed
efforts to submit claims, denied fraud claims without investigation or
explanation, and froze or blocked beneficiary access to accounts. Id.
Implemented an automated and unreliable “claim fraud filter” to deny fraud
claims and freeze accounts. Id. ¶¶ 89-92.
Indeed, BANA appears to have used the call centers to obstruct, rather than
help, EDD beneficiaries. From the First Amended Master Consolidated Complaint:
Calling the Bank’s EDD Debit Card customer service phone lines,
however, has often required Cardholders to endure hours-long wait times
(with no option to receive a callback when a customer service agent
becomes available), a variety of mishaps, and customer service agent
incompetence. Notwithstanding the foreseeable spike in calls that the
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Bank knew or should have known would inevitably accompany the
dramatic increase in unemployment benefits recipients during the
pandemic, the Bank failed to appropriately staff its customer service call
centers in a manner that would enable the Bank to honor its contractual
commitments under the EDD–Bank Contract and to provide reasonable
levels of assistance to the predictably large volume of EDD Debit
Cardholders seeking assistance. As a result, Plaintiffs and Class Members
attempting to report fraud or to inquire about potential fraud have been
kept on hold for hours, have been disconnected without warning, have
waited long periods of time to speak with someone only to be told to call
back later, have been transferred to various departments with no apparent
end or sent to voicemail, have had to deal with unhelpful automated
agents, and have unsuccessfully attempted to reach the Bank by email.
ECF No. 136, ¶ 88.
The documents that Plaintiffs seek through their subpoena to TTEC are directly
related to the allegations in the operative complaint. The subpoena includes 23
requests, which seek documents evidencing such things as the relationship between
BANA and TTEC, what sorts of customer contacts were handled by TTEC, the
training TTEC customer service personnel received, and whether and how BANA
instructed TTEC to deal with customers and the issues they presented. Specific
examples of subpoenaed documents include those concerning:
BANA’s contracts with TTEC. Id., Ex. 3, Request No. 1.
Communications between BANA and TTEC regarding the May 17, 2021
preliminary injunction. Id., Request No. 2.
TTEC’s hiring, onboarding, training, and disciplining of its call center
employees. Id., Request No. 3.
The materials TTEC used to train its call center employees. Id., Request No.
5.
The call center’s communications with the present class representatives. Id.,
Request No. 6.
Security measures used by TTEC to protect beneficiaries’ PII. Id., Request
No. 9.
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Any instances in which TTEC or its employees made any improper use of
PII. Id., Request No. 10.
Wait times experienced by beneficiaries when contacting the TTEC call
center(s). Id., Request No. 12.
Unsuccessful efforts to reach a call center employee. Id., Request No. 13.
How fraud claims were resolved. Id., Request No. 14.
Identification of key actors at TTEC vis-a-vis BANA. Id., Request No. 20.
The claims fraud filter. Id., Request No. 22.
II.
FED. R. CIV. P. 45 Obligates TTEC to Respond to the Subpoena
TTEC was obligated under FED. R. CIV. P. 45 to produce documents to
Plaintiffs by December 8, 2023. The subpoena met all relevant requirements found in
Rule 45. The subpoena was created by a party to this litigation, directed to a third party
that likely has relevant and discoverable evidence about the subject matter of this case,
commanded the production of documents to Plaintiffs’ attorney, was issued from the
court where the action is pending, and was properly served by delivery to the
subpoenaed party’s attorneys, who agreed to accept service of the subpoena on
TTEC’s behalf. Plaintiffs are unaware of any legal basis for TTEC to refrain from
complying with the subpoena.
III.
This Court Has Jurisdiction to Consider and Decide this Motion
This Court has jurisdiction to compel TTEC to comply with the subpoena under
the Multidistrict Litigation statute. As described above, this Court is assigned to
oversee coordinated or consolidated pretrial proceedings under § 1407. Section
1407(b) provides that “[t]he judge or judges to whom such actions are assigned … may
exercise the powers of a district judge in any district for the purpose of conducting
pretrial depositions in such coordinated or consolidated pretrial proceedings.” While
the statute refers to “depositions,” courts have “wisely” interpreted the provision to
cover document subpoenas, too. “Though the statutory language refers to ‘pretrial
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depositions,’ the statute wisely has been interpreted to embrace document production
subpoenas as well.” 9 JAMES W. MOORE ET AL., MOORE’S FEDERAL
PRACTICE § 45.50[4], at 45-75 through 45-77 (Matthew Bender 3d ed. 2006).
The Fifth Circuit squarely addressed this issue in In re Clients and Former Clients
of Baron & Budd, P.C. and Occupational Med. Resources, Inc., 478 F.3d 670 (5th Cir. 2007).
There, parties to an MDL case being overseen in the Eastern District of Pennsylvania
issued a subpoena for the production of documents in the Southern District of Texas.
Id. at 670-71. The Southern District of Texas denied motions to quash and directed
that “[a]ll future pleadings in this case be filed in MDL 875,” i.e., in the Eastern District
of Pennsylvania. Id. at 671.
The subpoenaed parties appealed to the Fifth Circuit, which observed that the
key underlying question that required analysis was “whether the authority conferred on
the MDL court by § 1407(b) extends beyond depositions so as to embrace the instant
subpoenas.” Id. The appellate court’s answer — that § 1407(b) does allow
enforcement of subpoenas where the case is pending — was firm and unambiguous.
“Based on the overwhelming weight of authority, we answer in the affirmative.” Id.
(citing MOORE’S FEDERAL PRACTICE) (emphasis added). The Fifth Circuit also
noted that its “conclusion is supported by the convincing analyses of myriad district
courts.” Id. at 672 (collecting cases from the Eastern District of Pennsylvania, District
Court of the District of Columbia, Southern District of New York, and Central District
of California). Barron & Budd has since been cited with approval by additional district
courts. See, e.g., Bayer Corp. Combination Aspirin Prods. Mktg. & Sales Practices Litig., 2012
U.S. Dist. LEXIS 205446, at *10 (E.D.N.Y. Aug. 17, 2012); In re Avandia Mktg., 2021
Dist. LEXIS 172327, at **11-12 & n. 43 (E.D. Pa. Sept. 10, 2021)).
The Sixth Circuit resorted to similar logic and case law to come to the same
conclusion about § 1407.
A judge presiding over an MDL case therefore can compel
production by an extra-district nonparty; enforce, modify, or quash a
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subpoena directed to an extra-district nonparty; and hold an extra-district
nonparty deponent in contempt, notwithstanding the nonparty’s physical
situs in a foreign district where discovery is being conducted.
Pogue, 444 F.3d at 467-69.1
The same analysis should lead to a similar result here. Because the present MDL
is overseen by the Southern District of California pursuant to § 1407, this Court has
jurisdiction to hear and decide a motion to compel TTEC to produce documents in
response to Plaintiffs’ subpoena.
CONCLUSION
For the reasons set forth above, the Court should grant Plaintiffs’ motion and
enter the proposed order submitted by Plaintiffs.
Dated: February 14, 2024
Respectfully submitted,
BOTTINI & BOTTINI, INC.
s/ Aaron P. Arnzen
Aaron P. Arnzen
Francis A. Bottini, Jr. (SBN 175783)
Albert Y. Chang (SBN 296065)
Aaron P. Arnzen (SBN 218272)
7817 Ivanhoe Avenue, Suite 102
La Jolla, CA 92037
Telephone: 858/914-2001
Facsimile:
858/914-2002
Email: fbottini@bottinilaw.com
aarnzen@bottinilaw.com
achang@bottinilaw.com
Counsel for Class Representative Plaintiff Lindsay
McClure
COTCHETT, PITRE & MCCARTHY, LLP
Joseph W. Cotchett (SBN 36324)
Brian Danitz (SBN 247403)
Karin B. Swope (Pro Hac Vice)
Andrew F. Kirtley (SBN 328023)
840 Malcolm Road, Suite 200
Burlingame, CA 94010
1 But see In re Packaged Seafood Prods. Antitrust Litig., 2018 U.S. Dist. LEXIS 7669,
at **45-46 (S.D. Cal. Jan. 17, 2018) (Dembin, M.J.) (denying motion to compel out-of-
district third-party compliance because “deposition,” as used in § 1407, is narrower
than other courts have interpreted the term).
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Telephone: (650) 697-6000
Email: jcotchett@cpmlegal.com
bdanitz@cpmlegal.com
kswope@cpmlegal.com
akirtley@cpmlegal.com
ALTSHULER BERZON LLP
Michael Rubin (SBN 80618)
Stacey M. Leyton (SBN 203827)
Matthew Murray (SBN 271461)
Connie K. Chan (SBN 284230)
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Email: mrubin@altber.com
sleyton@altber.com
mmurray@altber.com
cchan@altber.com
Interim Co-Lead Counsel for Plaintiffs and the
Proposed Class
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