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DEFS.’ MOT. TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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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
SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 21-MD-02992-GPC-MSB
DEFENDANT’S NOTICE AND
MOTION TO SEAL DOCUMENTS
FILED IN SUPPORT OF
PLAINTIFFS’ MOTION FOR
CLASS CERTIFICATION
Ctrm:
2D – 2nd Floor
Judge:
Hon. Gonzalo P. Curiel
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DEFS.’ MOT. TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
Defendant Bank of America, N.A. (“Defendant” or “BANA”) submits this Notice
and Motion to Seal certain documents and portions of other documents submitted in
support of Plaintiffs’ Motion for Class Certification (ECF No. 324).1
A.
STANDARD TO SEAL DOCUMENTS
The public’s right to inspect and copy judicial records is not absolute, and a
party faced with the disclosure of confidential or proprietary information may seek
to file the documents under seal to avoid disclosure of business information that
might result in competitive harm or be used for improper purposes. See Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978)) (denying disclosure); Local Civ.
R. 79.2(c). The documents referenced in Plaintiffs’ Motion to Seal each contain
information that qualifies as “Protected Material” pursuant to the Parties’ Stipulated
Protective Order (“Protective Order”), entered by the Court on September 24, 2021
(ECF No. 82).
Courts in this district have held that a party seeking to seal documents filed in
support of a motion for class certification must show “compelling reasons”
supporting the sealing. See, e.g., McMorrow v. Mondelez Int’l, Inc., No. 17-CV-
2327-BAS-JLB, 2021 WL 488337, at *2-3 (S.D. Cal. Feb. 10, 2021) (finding
compelling reasons to seal documents filed under seal in support of and in opposition
to motion for class certification); McCurley v. Royal Seas Cruises, Inc., No. 17-CV-
00986-BAS-AGS, 2018 WL 3629945, at *2 (S.D. Cal. July 31, 2018) (finding
compelling reasons to seal document filed in support of class certification). This
1 Plaintiffs filed a Motion to Seal (ECF No. 322) the same documents submitted with
their Motion for Class Certification (ECF No. 324), but Plaintiffs improperly filed a
proposed order denying that same motion (ECF No. 322) contrary to the Parties’
Protective Order (ECF No. 82) and the Local Rules. Accordingly, Defendant is filing
this Motion to Seal and a separate Proposed Order. This Motion is based on
Defendant’s Notice of Motion and Motion to Seal, the documents filed in support of
Plaintiffs’ Motion for Class Certification (ECF No. 324), all pleadings and papers on
file in this action, oral argument if requested by the Court, and any such other matters
that the Court deems appropriate. Should the Court desire more detailed briefing in
order to decide Defendant’s Motion to Seal, BANA respectfully requests the
opportunity to submit additional briefing and declarations in support of sealing.
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DEFS.’ MOT. TO SEAL CASE NO. 21-MD-02992-GPC-MSB
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standard requires courts to “‘conscientiously balance[ ] the competing interests’ of
the public and the party who seeks to keep certain judicial records secret.” In re: Bofi
Holding, Inc. Sec. Litig., No. 3:15-CV-02324-GPC-KSC, 2016 WL 5390533, at *16
(S.D. Cal. Sept. 27, 2016) (J. Curiel) (citation omitted) (finding compelling reasons
to grant motion to seal to protect confidential witnesses). Courts have found that
compelling reasons exist to seal when disclosure of the “‘confidential information . .
. is potentially prejudicial to the business or operations’ of Defendants” or risks
“potential misuse by competitors.” McCurley, 2018 WL 3629945, at *2; see East
West Bank v. Shanker, No. 20-CV-07364-WHO, 2021 WL 3112452, at *18-19 (N.D.
Cal. July 22, 2021) (finding compelling reasons to seal where public disclosure of
EWB’s confidential onboarding processes, verification of customer identities and
fraud prevention measures would “harm [the bank’s] competitive standing”).
Additionally, “compelling reasons” outweigh the public’s interest in disclosure when
such disclosure could potentially enable future fraud. See, e.g., Soria v. U.S. Bank
N.A., No. SACV 17-00603-CJC(KESx), 2019 WL 8167925, at *4 (C.D. Cal. Apr.
25, 2019) (finding compelling reasons to seal bank’s internal procedures for
investigating fraud because there was a “significant danger that someone could
improperly use this information to commit fraud and avoid detection”).
B.
COMPELLING REASONS EXIST TO SEAL THE
CONFIDENTIAL DOCUMENTS
There are compelling reasons to file under seal each of the confidential
documents, discovery responses and testimony referenced in Plaintiffs’ Motion to
Seal (or portions thereof), and any substantive discussion of those documents
contained in Plaintiffs’ Motion for Class Certification.2 Each of those documents
2 Any references to BANA’s confidential documents, discovery responses or
testimony within Plaintiffs’ Notice of Motion, Memorandum of Points and
Authorities in Support of Motion for Class Certification, or any exhibits submitted
therewith, including Plaintiffs’ expert reports (Exs. 1-4) and Plaintiffs’ Proposed
Trial Plan (Ex. 157) should remain redacted because disclosure could harm BANA’s
competitive standard or risk future fraud, for the reasons discussed below.
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and testimony were properly designated as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” under the Protective Order entered by this Court because each
pertains to topics that are likely to cause particularized competitive harm to BANA
and which could potentially enable future fraud, which poses a danger to BANA’s
business and the public. Both are compelling reasons which outweigh the public
disclosure factors, and thus permit sealing of those documents. For example, in East
West Bank v. Shanker, a California district court granted a motion to seal portions of
exhibits concerning confidential “onboarding processes, digital banking platform,
fraud management techniques, and verification of customer identities, which if made
public would harm EWB’s business,” and found that public disclosure of EWB’s
confidential fraud prevention measures would “harm EWB’s business.” 2021 WL
3112452, at *18-19. Similarly, in Soria v. U.S. Bank, N.A., another California district
court found compelling reasons to file under seal information related to a bank’s
internal procedures for investigating incidents of fraud, explaining that “[a]lthough
there is a public interest in U.S. Bank’s procedures concerning its fraud
investigations, public disclosure of this information may impede U.S. Bank’s ability
to identify and combat future instances of fraud” and that “[t]here is a significant
danger that someone could improperly use this information to commit fraud and
avoid detection.” 2019 WL 8167925, at *4.
Similar compelling reasons exist here.3 Specifically, the Confidential and
Highly Confidential – Attorneys’ Eyes Only documents and testimony that BANA
seeks to seal, include but are not limited to, the following categories of documents
and information:
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BANA’s fraud detection and prevention policies and strategies,
including the Claim Fraud Filter, and other current and former fraud
strategies (see Exs. 27, 38, 44, 48, 49, 50, 56, 57, 59, 64, 65, 67, 81, 88,
3 Although BANA appropriately designated its cardholder agreement with EDD
cardholders (Ex. 76) and its contract with EDD (Ex. 115) as Confidential under the
Protective Order, BANA does not seek to seal those documents on the public docket.
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91-92, 94-101, 106, 113-114, 141-143, 145, 153 and 156);
•
BANA’s claims review policies and strategies and the implementation
thereof, including reviewing complaint escalations and issuing
provisional credits in compliance with regulations (see Exs. 35-36, 47,
77, 79, 80, 82-87, 93, 96, 102, 104, 116-118, 141-143 and 156);
•
BANA’s analyses of transactional fraud, including card skimming, and
potential fraud prevention and detection strategies to combat that fraud,
including EMV chip technology (see Exs. 27-29, 32-34, 55, 89 and
144);
•
BANA’s analyses of claims fraud and potential strategies to combat that
fraud, including the use of the Claim Fraud Filter (see Exs. 42-43, 46,
51, 54, 58, 68, 75, 78, 105 and 106);
•
BANA’s call center operations and strategies, including its
authentication procedures, trainings, business controls and processes
and performance assessments (see Exs. 30, 66, 77, 96, 114, 119-122,
124-125, 133-134, 136-138, 140 and 151);
•
BANA’s general services agreements and statements of work between
BANA and its call center vendors (see Exs. 123, 126-130, 132, 135 and
152);
•
BANA’s communications with EDD regarding BANA’s and/or EDD’s
fraud strategies, including the use of EMV chip technology and freezing
and blocking of accounts (see Exs. 24-26, 31, 45, 69 and 108);
•
BANA’s analyses of its state prepaid unemployment program
operations, including but not limited to, contractual negotiations, card
volume, fraud volume, claims and call center operations, and
operational risks and losses (see Exs. 93, 96, 109-110, 116, 118-119,
139-140, 148 and 154);
•
BANA’s fraud and operational losses in connection with the
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unemployment insurance prepaid programs (see Exs. 37, 39-41, 90, 107,
111, 119, 148, 153 and 155);
•
BANA’s organizational charts reflecting the Bank’s divisions
responsible for fraud strategies and prevention, among others (Ex. 150);
•
BANA’s Remediation Plans and Addenda with the OCC and CFPB, and
its implementation of those Plans, which both agencies themselves
designated as “Highly Confidential – Attorneys’ Eyes Only” (see Exs.
49, 74, 98, 146 and 147);
•
BANA’s interrogatory responses and data provided therein reflecting
BANA’s use of the Claim Fraud Filter to decision unauthorized
transaction claims and to freeze or block EDD cardholder accounts, and
any reconsideration by BANA of those claims and any compensation
paid as a result (see Exs. 49, 59-60, 98, 114, and 146); and
•
non-plaintiff customers’ complaints or claim information, which often
include personal, sensitive information (see Exs. 49, 59-60, 98, 114, 140
and 146).4
Documents, discovery responses and testimony just like these, including some
of the exhibits re-submitted with Plaintiffs’ Motion for Class Certification5, were
previously submitted under seal in connection with Plaintiffs’ motion to compel ESI
discovery. See ECF No. 212. Upon review of the parties’ motion to seal, Magistrate
4 Plaintiffs submit excerpted deposition testimony from six BANA witnesses (Exs.
14-20), which BANA designated as Confidential or Highly Confidential – Attorneys’
Eyes Only because those witnesses testify to the same categories of confidential
information described above, including but not limited to: BANA’s handling of
unauthorized transactions claims and reconsiderations; BANA’s contract with EDD
and the responsibilities thereunder; BANA’s communications with EDD regarding
fraud-related measures; BANA’s fraud strategies, including the use of EMV chip
technology and the freezing and blocking of accounts; BANA’s call center
procedures and complaint escalation intake channels; and BANA’s implementation
of its remediation plans with regulators.
5 Judge Berg already found “compelling reasons” to seal Exhibits 58, 106, 111, 134
and 150, which were previously filed in connection with Plaintiffs’ motion to compel
briefing. See ECF No. 266.
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Judge Berg agreed that each of the documents should be kept under seal because
“there are compelling reasons that overcome the presumption of public access,
pursuant to Civil Local Rule 79.2.” (Apr. 24, 2024 Order (ECF 266)) (emphasis
added). The sealed documents included, but were not limited to, those related to
discussions of: the Claim Fraud Filter and other fraud strategies, claims strategies
(including issuing provisional credits), call center operations, fraud losses, state
contract issues, prepaid updates and trackers, Board meeting minutes, cardholder
complaints and escalations, BANA’s organizational charts, and certain of BANA’s
responses and objections to Plaintiffs’ interrogatories. Additionally, the Court found
“good cause shown” in permitting the sealing of documents and testimony filed in
connection with Plaintiffs’ Objections to and Motion to Reverse in Part Magistrate
Judge’s April 24, 2024 Discovery Order (ECF Nos. 278-279). (June 14, 2024 Sealing
Order (ECF No. 293)). Those exhibits similarly pertain to the Claims Fraud Filter
and other fraud strategies, operational fraud losses, and trainings for claims
investigations. See id.6 The Court should find the same here, and grant Defendant’s
Motion to Seal, because the documents identified in Defendant’s Motion to Seal
concern the very topics and issues that this Court and Judge Berg have already found
should be sealed, and that Judge Berg notably found “compelling reasons that
overcome the presumption of public access” to seal. ECF Nos. 266 at 1 (emphasis
added); see also ECF No. 293.
Indeed, public access to BANA’s fraud and claims review strategies (see Exs.
7, 35-36, 38, 44, 47-50, 56-57, 59, 64-65, 67, 77, 79- 88, 91-102, 104, 106, 113-114,
116-118, 141-143, 145, 153 and 156), and any analyses of fraud and possible
strategies to combat fraud (see Exs. 27-29, 32-34, 42-43, 46, 51, 54-55, 58, 68, 75,
78, 89, 105-106, and 144) could provide insight into BANA’s fraud detection and
prevention measures. That insight could be used by fraudsters to perpetrate future
6 The Court already found “good cause” to seal Exhibits 39, 44, 45, 47 and 101,
which were previously filed with Plaintiffs’ Objections to and Motion to Reverse in
Part Magistrate Judge’s April 24, 2024 Discovery Order. See ECF No. 293.
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fraud and to circumvent BANA’s security and fraud prevention procedures, and to
otherwise cause harm to the Bank and its customers, which are compelling reasons
to seal these documents. See, e.g., Soria, 2019 WL 8167925, at *4 (granting motion
to seal because, “[a]lthough there is a public interest in U.S. Bank’s procedures
concerning its fraud investigations, public disclosure of this information may impede
U.S. Bank’s ability to identify and combat future instances of fraud” and “[t]here is
a significant danger that someone could improperly use this information to commit
fraud and avoid detection”); see also Jasso v. Wells Fargo Bank, N.A., 2022 WL
2665979, at *2 (D. Nev. July 8, 2022) (granting motion to seal documents that
“contain sensitive information . . . regarding Wells Fargo’s business practices and
procedures that could be used for an improper purpose if allowed into the public
record”). BANA’s communications with EDD regarding fraud strategies utilized in
the EDD program, including the use of EMV chip technology and the freezing and
blocking of accounts (see Exs. 24-26, 31, 45, 69 and 108) could also be misused by
fraudsters to perpetrate future fraud and avoid detection. See, e.g., Soria, 2019 WL
8167925, at *4; Jasso, 2022 WL 2665979, at *2. Similarly, public access to
information regarding BANA’s call center operations and strategies, including its
authentication procedures, trainings, business controls and processes and
performance assessments (see Exs. 30, 66, 77, 96, 114, 119-122, 124-125, 133-134,
136-138, 140 and 151) could be used by fraudsters to perpetrate future fraud and to
circumvent BANA’s call center authentication and fraud prevention procedures. See,
e.g., Soria, 2019 WL 8167925, at *4.7
Moreover, the aforementioned categories of documents and testimony also
contain sensitive business information that could be used to BANA’s competitive or
7 There are compelling reasons to seal discontinued fraud and claim strategies, like
the Claim Fraud Filter, because different indicators, features or components of those
strategies could be used now or in the future, as part of BANA’s many fraud
prevention strategies. Moreover, BANA’s past and present fraud strategies, and
related rationales or analysis, could be misused by fraudsters and criminals to gain
insight into BANA’s inner workings to circumvent future fraud strategies to
perpetrate future fraud or crimes. See, e.g., Soria, 2019 WL 8167925, at *4.
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commercial disadvantage, which is yet another compelling reason to seal the
documents. See, e.g., East West Bank, 2021 WL 3112452, at *18-19 (granting
motion to seal where public disclosure of EWB’s confidential fraud prevention
measures would “harm EWB’s competitive standing”); Brady v. Grendene USA, Inc.,
No. 3:12-CV-0604-GPC-KSC, 2015 WL 6828400, at *3 (S.D. Cal. Nov. 6, 2015) (J.
Curiel) (permitting sealing of confidential business information including profit and
loss data as well as contractual agreements). For example, documents, testimony or
discovery responses demonstrating how BANA structures its claims and fraud teams
(see Ex. 150), and the review procedures, protocols, and systems used and
implemented by those teams (see Exs. 7, 35-36, 38, 44, 47-50, 56-57, 59, 64-65, 67,
77, 79-88, 91-102, 104, 106, 113-114, 116-118, 141-143, 145, 153 and 156) is
sensitive business information that, if disclosed to the public, could be replicated by
a competitor financial institution to BANA’s competitive disadvantage. See, e.g.,
East West Bank, 2021 WL 3112452, at *18-19 (permitting sealing of confidential
onboarding processes, digital banking platform, fraud management techniques, and
verification of customer identities).
Additionally, documents or testimony reflecting BANA’s analyses of its state
prepaid unemployment program operations, including but not limited to, contractual
negotiations with the states, contracts with call center vendors, card and fraud
volumes, and operational risks and losses (see Exs. 37, 39-41, 90, 93, 96, 107, 109,
110-111, 116, 118-119, 123, 126-130, 132, 135, 139, 140, 148 and 152-155) could
similarly be used by a competitor financial institution to BANA’s competitive
disadvantage. See, e.g., Adtrader, Inc. v. Google LLC, No. 17-CV-07082-BLF, 2020
WL 6391210, at *2 (N.D. Cal. Mar. 24, 2020) (finding compelling reasons to seal
portions of order referencing Google’s internal strategic decisions, policies, and
processes related to detecting and responding to advertising fraud on its platforms);
Xifin, Inc. v. Sunshine Pathways, LLC, No. 16-CV-01218-GPC-DHB, 2016 WL
5930313, at *3 (S.D. Cal. Oct. 12, 2016) (J. Curiel) (finding compelling reasons to
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seal services agreement that contained detailed information about pricing structure,
nature of services, system security requirements, and how to use the cloud-based
billing system “that could expose Plaintiff to a competitive disadvantage if
revealed”); Brady, 2015 WL 6828400, at *3 (sealing confidential business
information that might harm the litigants’ competitive standing including profit and
loss data and contractual agreements); Zest IP Holdings, LLC v. Implant Direct Mfg.
LLC, No. 3:10-CV-0541-GPC-WVG, 2015 WL 11201172, at *3 (S.D. Cal. Oct. 28,
2015) (J. Curiel) (sealing Board minutes).
Additional compelling reasons exist to seal Exhibits 49, 59, 60, 98, 114, 140
and 146 because they reflect non-plaintiff customers’ complaints, which often
include personal, sensitive information that the customers did not intend to appear on
a public docket. See, e.g., Pryor v. City of Clearlake, No. C 11-0954 CW, 2012 WL
3276992, at *2 (N.D. Cal. Aug. 9, 2012) (granting in part motion to seal documents
not relevant to the litigation, including the prior arrest record of a non-litigant finding
that “three factors-irrelevance, personal identification information and likely
embarrassing information about the arrest of a non-litigant—outweigh the public’s
interest in disclosure”); Castillon v. Corr. Corp. of Am., Inc., No. 1:12-CV-00559-
EJL, 2015 WL 3948459, at *2 (D. Idaho June 29, 2015) (“With regard to non-
litigants, while there is no presumption that their privacy requires sealing, the
balancing test may reach that result, especially if the non-litigants are not involved in
the litigation and their sensitive and confidential information has been involuntarily
provided pursuant to a subpoena.”). For example, BANA’s responses and objections
to Plaintiffs’ interrogatories (and the exhibits thereto), including Exhibits 49, 59, 60,
98, 114 and 146, contain personal transaction details and claims information,
including their Alias IDs, that is both confidential as to the non-plaintiff cardholders,
and confidential, proprietary business information for BANA. See, e.g., Pryor, 2012
WL 3276992, at *2; East West Bank, 2021 WL 3112452, at *18-19. Moreover,
Plaintiffs themselves designated their own claim correspondence as Confidential in
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many instances. See Ex. 62. Accordingly, non-plaintiff customer complaints contain
sensitive, personal information that overcomes the presumption of public access and
warrants sealing.
Finally, compelling reasons exist to seal Exhibits 49, 59, 60, 74, 98, 146 and
147, which contain documents and information regarding BANA’s implementation
of its Remediation Plans and Addenda with the OCC and CFPB. These documents
have been designated as Highly Confidential – Attorneys’ Eyes Only per the direction
of the regulators because they contain confidential information belonging to each
regulator that is subject to 12 C.F.R. § 4.32(b)(1)-(2) and 12 C.F.R. § 1070.47(b),
because the implementation of those plans are ongoing and subject to change, and
because the release of such information could permit persons to potentially take
advantage of the Remediation Plans’ review processes and procedures. Accordingly,
Plaintiffs agreed in this case to accept this information as Attorneys’ Eyes Only as a
condition to receiving it. See ECF No. 82.
II.
CONCLUSION
For the foregoing reasons, BANA respectfully requests that the Court grant
Defendant’s Motion to Seal because compelling reasons support sealing of the
identified documents or portions thereof. Defendant has lodged a Proposed Order
separately with the Court.
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Dated: September 5, 2024
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
THOMAS M. HEFFERON (pro hac vice)
THefferon@goodwinlaw.com
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N St. 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
YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN
278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
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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 September 5, 2024. 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:
September 5, 2024
s/ James W. McGarry
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