Motion - See Lundstrom v. Young, (2024-10-03)

Summary

Defendant's Reply in Support of Motions to Seal Documents Filed in Support of Plaintiffs' Motion for Class Certification in In re Bank of America California Unemployment Benefits Litigation, Case No. 21-MD-02992-GPC-MSB, in the U.S. District Court for the Southern District of California, filed 10/03/24 as Document 344. BANA argues that Plaintiffs' opposition, filed contrary to their own initial motions to seal (ECF 322 and 334), is procedurally improper and violates the Stipulated Protective Order. It states that good cause and compelling reasons to seal exist and that the court has already sealed some of the exhibits at issue, citing ECF 266 and ECF 212, 293. It argues that the "good cause" standard applies to sealing motions connected with class certification, and says it includes the declarations of William Martin, Don Robart and Jennifer Lennon with the reply.

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DEFS.’ REPLY IN SUPPORT OF 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 REPLY IN
SUPPORT OF MOTIONS 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.’ REPLY IN SUPPORT OF MOT. TO SEAL

   CASE NO. 21-MD-02992-GPC-MSB

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Plaintiffs’ attempt to challenge BANA’s well-founded confidentiality
designations by filing an opposition contrary to their own initial motions to seal (ECF
322 and 334) is procedurally improper, and violates the Stipulated Protective Order,
which requires a party seeking to file Protected Material to “file the redacted
document(s) simultaneously with a joint motion or ex parte application requesting
that the confidential portions of the document(s) be filed under seal and setting forth
good cause for the request.”  ECF 82, § 12.5.  Prior to filing the Protected Material
with their Motion for Class Certification, Plaintiffs failed to confer with BANA as
required to file a joint motion to seal, and instead improperly filed their own motion
to seal (along with a Proposed Order denying that motion).  ECF 322, 334.1  Because
Plaintiffs have violated the Protective Order, their opposition should be ignored.
In any event, as BANA demonstrated in its Motion to Seal (ECF 328,
“Motion”) and this court has already found, good cause and compelling reasons to
seal exist based on the plain language of the exhibits and testimony at issue—which
each relate to confidential business practices and fraud prevention measures that
could be misused to commit future fraud or used by competitor banks to BANA’s
disadvantage.  Indeed, the Opposition fails to address the fact that this court has
already sealed some of the exhibits at issue (and many others like them) based on
compelling reasons and good cause.  Earlier this year, Judge Berg determined that
there are “compelling reasons” to seal a number of the exact same exhibits previously
submitted with Plaintiffs’ motion to compel discovery, as well as others that concern
the very same confidential information that BANA seeks to seal here.  See ECF 266
(sealing Exs. 58, 106, 111, 134 and 150).  In doing so, Judge Berg found that
compelling reasons existed to seal information concerning: the Claim Fraud Filter,
other fraud and claims strategies, call center operations, fraud losses, state contract
issues, prepaid updates and trackers, Board meeting minutes, cardholder complaints

1 Plaintiffs then filed additional portions of documents in support of their Motion for
Class Certification 15 days after it was due, and again failed to confer with BANA,
thereby requiring BANA to file yet another Motion to Seal.  See ECF 333, 336, 337.
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

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and escalations, BANA’s organizational charts, and certain of BANA’s interrogatory
responses—which are precisely the types of documents BANA seeks to seal here.
See Mot. at 5-6; infra at 5-9.  This Court also found good cause to seal the same or
similar documents, including other exhibits at issue, related to the Claim Fraud Filter
and other fraud strategies, operational fraud losses, and trainings for claims
investigations.  See ECF 212, 293 (sealing Exs. 39, 44, 45, 47 & 101).2  Those prior
rulings are sufficient grounds alone to grant sealing here.  See Lundstrom v. Young,
2022 WL 15524624, at *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel) (considering prior
sealing of identical exhibits when granting motion to seal).
Moreover, as BANA demonstrated in its Motion, the documents it seeks to
seal relate to fraud and claims strategies, call center operations, prepaid fraud losses,
BANA’s remediation efforts, and other sensitive and proprietary commercial
information described above.  See Mot. at 5-10.  As this court and others have
regularly found, good cause and compelling reasons exist to seal such materials
because their disclosure is likely to cause particularized competitive harm to BANA
and could potentially enable future fraud.  BANA respectfully asks that the Court do
the same again here, and grant its Motion.
A.
STANDARD TO SEAL DOCUMENTS
Neither Party disputes that the public’s right to inspect and copy judicial
records can be outweighed by the risk that the disclosed information could result in
competitive harm or be used for improper purposes.  Mot. at 1-2; Opp. at 2-3, 9.  The

2  Plaintiffs’ argument that BANA should be sanctioned for over-designating
documents confidential (Opp. at 10 n.3) should be ignored given the Court’s prior
findings of both good cause and compelling reasons to seal the same or similar
documents (see ECF 266, 293).  See Berdan Cole LLC v. Technicolor USA, Inc., 2022
WL 18142507, at *5 (C.D. Cal. Nov. 29, 2022) (denying sanctions absent bad faith).
To the contrary, Plaintiffs’ continued challenges to the sealing of documents already
sealed by the court are themselves grounds for sanctions under the Protective Order.
See ECF 82, § 6.3 (“Frivolous challenges [to confidentiality designations], and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and
burdens on other parties), may expose the Challenging party to sanctions.”).
Moreover, ignore that Class Representative Plaintiffs designated all of the documents
they produced as Confidential, and have yet to de-designate any documents.
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

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Parties disagree, however, on the standard that should be applied here to Defendants’
Motions to Seal certain confidential documents (or portions thereof) that Plaintiffs
filed in support of class certification.
Plaintiffs wrongly suggest that BANA must show heightened compelling
reasons to protect the documents given the class action context.  Opp. at 16-18.  While
BANA has demonstrated that compelling reasons exist to seal the documents at issue,
courts in this Circuit, including this Court, have applied the “good cause” standard to
sealing motions in connection with class certification “[u]nless the denial of a motion
for class certification would constitute the death knell of the case.”  See Makaeff v.
Trump Univ., LLC, No. 10-cv-0940-GPC (WVG), ECF 416 (S.D. Cal. June 29, 2015)
(J. Curiel) (quoting Algarin v. Maybelline, LLC, 2014 WL 690410 at *2 (S.D. Cal.
Feb. 21, 2014) (appended as Ex. A); see also Andren, v. Alere Inc., No. 3:16-cv-
01255-GPC (AGS), ECF 112 (S.D. Cal. Sept. 11, 2017) (J. Curiel) (finding “good
cause” to seal portions of opposition to class certification) (appended as Ex. B).  Here,
where nearly 400 Individual Plaintiffs filed suit against BANA and alleged more than
de minimis damages, it is likely the case would proceed should class certification be
denied (see ECF 304, 311, 325), and thus the good cause standard applies.  See
Algarin, 2014 WL 690410 at *2.
Even applying the “compelling reasons” standard, however, Courts
consistently seal documents where—as here—disclosure of the confidential business
information risks competitive harm to the litigant or improper use of the information
such as to commit fraud.  E.g., E.W. Bank v. Shanker, 2021 WL 3112452, at *18-19
(N.D. Cal. July 22, 2021) (finding compelling reasons to seal confidential onboarding
processes, verification of customer identities, and fraud prevention measures); Soria
v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal. Apr. 25, 2019) (finding
compelling reasons to seal internal fraud investigation procedures because there was
a “significant danger that someone could improperly use this information to commit
fraud and avoid detection.”).  Moreover, courts, including this Court, have done so
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

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without requiring declarations or affidavits in support—particularly where, as here,
the court has already held compelling reasons exist to seal the same or similar
documents, and it is clear from the face of the documents that they contain highly
sensitive information that could open up the Bank to risk of fraud or cause
competitive harm.  See, e.g., Workplace Techs. Rsch., Inc. v. Project Mgmt. Inst.,
Inc., 2021 WL 6091272, at *3 (S.D. Cal. Oct. 20, 2021) (sealing references to
document that court already granted sealing of); In re ConAgra Foods, Inc., 2014
WL 12577133, at *4 (C.D. Cal. Dec. 29, 2014) (same).3
B.
GOOD CAUSE AND COMPELLING REASONS EXIST
As BANA demonstrated in its Motion (at 2-10), there is good cause and
compelling reasons to file under seal each of the confidential documents, discovery
responses, and testimony referenced in Plaintiffs’ and BANA’s Motions to Seal, and
any substantive discussion of those documents contained in Plaintiffs’ Motion for
Class Certification.  Thus, the information should remain sealed.
Documents that risk future fraud.  BANA moved to seal BANA’s fraud and

3 This Court has also permitted sealing of exhibits and documents in this matter, and
others, based on briefing alone. See ECF No. 293 (finding good cause to seal
documents absent supporting declaration by either Party); IQVIA Holdings, Inc. v.
Medimpact Healthcare Sys., Inc., No. 3:21-cv-02081-GPC-DEB, ECF 112 (S.D. Cal.
Nov. 29, 2022) (J. Curiel) (finding compelling reasons to seal documents similar to
ones previously sealed absent declaration) (appended as Ex. C).  Moreover, where
the Court requires further briefing or evidence to decide a motion to seal, it has
permitted supplemental briefing and deferred ruling on sealing until briefing on the
underlying motion was complete (here, Plaintiffs’ motion for class certification).
See, e.g., Vuz v. DCSS III, Inc., No. 3:20-cv-000246-GPC-AGS, ECF No. 127 (S.D.
Cal. June 16, 2021) (J. Curiel) (permitting renewed motion to seal with further
arguments supporting good cause) (appended as Ex. D); see also Bona Fide
Conglomerate, Inc. v. SourceAmerica, No. 3:14-cv-00751-GPC-AGS, ECF No. 589
(S.D. Cal. Oct. 29, 2018) (J. Curiel) (finding compelling reasons to seal portions of
documents after deferring ruling on motion to seal and permitting supplemental
briefs) (appended as Ex. E).  See also Hilsley v. Gen. Mills, Inc., 2020 WL 5656687,
at *2 (S.D. Cal. Sept. 23, 2020) (cited at Opp. 4) (permitting defendants to file another
motion to seal).  Thus, BANA maintains that its Motion and this court’s prior orders
clearly demonstrate good cause and compelling reasons to seal the documents and
information at issue here— particularly where, as here, Plaintiffs failed to confer with
BANA to submit a joint motion to seal as required under the Protective Order.
However, to the extent the Court may desire supporting declarations concerning any
documents or redactions at issue, BANA includes those with this reply.  See
Declarations of  William Martin (“Martin”), Don Robart (“Robart”) and Jennifer
Lennon (“Lennon”).
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

   CASE NO. 21-MD-02992-GPC-MSB

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claims review strategies and any analyses thereof because they could be misused to
perpetrate future fraud against BANA and the public.  Mot. at 2-7; Martin ¶¶ 7-10;
Robart ¶¶ 4-5.  As courts routinely find, and this court has previously found in this
case (see ECF 266, 293), there is good cause and compelling reasons to limit public
access to such documents because their disclosure could lead to future fraud that
poses a harm not only to the Bank, but also the public.  See Soria, 2019 WL 8167925,
at *4 (granting sealing of bank’s fraud investigations procedures); see also Bohannon
v Facebook, Inc., 2019 WL 188671, at *6 (N.D. Cal. Jan. 14, 2019) (finding
compelling reasons to seal references to policies and methods used for refunds and
to confirm identities because disclosure “might allow a third party to…undermine…
protections against fraud, in turn causing harm to both Facebook and its users”).4
Plaintiffs challenge the sealing of some these documents, arguing that the
Claim Fraud Filter or other fraud strategies utilized by BANA in 2020 and 2021 are
no longer used.  Opp. at 12.  But as a preliminary matter, this court has already found
that good cause and compelling reasons exists to seal documents concerning the
Claim Fraud Filter.  See ECF 266, 293.  Moreover, the Claim Fraud Filter and
BANA’s other fraud strategies were comprised of various elements, some of which
BANA may still use today or in the future as part of or in conjunction with its many
strategies and algorithms utilized to prevent fraud across its many products and
services.  See Mot. at 6-7, n.7; Martin ¶¶ 5, 7-9.  Further, simply because a fraud
strategy is no longer in use today does not mean that disclosure of that strategy would
not provide a potential fraudster with insight into BANA’s fraud prevention measures
that could be used to decipher active fraud strategies.  See, e.g., Soria, 2019 WL
8167925, at *4; Martin ¶¶ 7-8.

4  Contrary to Plaintiffs’ contention (Opp. at 10-11), the court in Jacques v. Bank of
Am. Corp. merely denied sealing of the bank’s investigation files for plaintiff without
prejudice, not its fraud investigation policies and procedures generally.  2016 WL
10933080, at *2 (E.D. Cal. July 28, 2016). And the court in Nia v. Bank of Am., N.A.
permitted the bank to propose redactions of its consumer residency monitoring
policies and only denied sealing of policies or practices that are easily discoverable,
which is not the case here.  2024 WL 171659, at *3 (S.D. Cal. Jan. 12, 2024).
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

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To the extent Plaintiff argues there cannot be compelling reasons to seal prior
discussions concerning EMV chips on EDD cards because BANA has since added
EMV chips and exited the EDD program (Opp. at 6-7, 11), Plaintiffs ignore that
BANA operated many other prepaid programs, as well as many other consumer and
commercial programs.  See Martin ¶ 8; Ex. 16 (Martin Tr.) at 61:19-23.  BANA’s
internal analyses concerning the costs associated with and types of fraud that EMV
chips may or may not prevent are not public knowledge, and could still be misused
by fraudsters to perpetrate fraud on cards with or without EMV chips.  See Martin ¶
8.  Thus, they too should remain sealed.  See Mot. at 7.
Documents that risk competitive harm.  As BANA further demonstrated in
its Motion (at 3-5, 7-9) and this Court previously found (ECF 266, 293), many of the
documents BANA seeks to seal also contain sensitive business information.  The
disclosure of such information risks competitive harm to BANA (Mot. at 3-5, 6-9),
which is another compelling reason to seal those documents.  See, e.g., E.W. Bank,
2021 WL 3112452, at *18-19 (granting motion to seal where public disclosure of
confidential fraud prevention measures would “harm [bank’s] competitive
standing”); Adtrader, Inc. v. Google LLC, 2020 WL 6391210, at *2 (N.D. Cal. Mar.
24, 2020) (sealing references to internal strategic decisions, policies, and processes
related to detecting and responding to advertising fraud).5
Most basically, Plaintiffs incorrectly assume that public disclosure of certain
prepaid fraud prevention, claims review, or other measures would only potentially
cause competitive harm or fraud to BANA’s EDD prepaid program.  See Opp. at 6-
7, 11-13, 14 n.7.  This myopic view has no support.  BANA, of course, operates many
other prepaid, consumer, and commercial programs, and those programs utilize many
of the same or similar policies, procedures, or strategies regarding fraud prevention,

5 See also Bohannon, 2019 WL 188671, at *7 (compelling reasons to seal factors
used to assess refunds or identify users because it would cause competitive harm and
exploitation by users); Cowan v. GE Cap. Retail Bank, 2015 WL 1324848, at *2-3
(N.D. Cal. Mar. 24, 2015) (compelling reasons to seal bank’s internal procedures for
investigating fraud and addressing cardholder fraud notifications).
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

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cardholder authentication, and claims review, among other topics.  See Martin ¶¶ 7-
8; Robart ¶ 3.6  If disclosed, this information could be used by other financial
institutions to BANA’s competitive disadvantage (and by criminals to potentially
perpetrate fraud), Martin ¶¶ 5, 7-10; Robart ¶¶ 4-5, and therefore courts often hold it
should remain sealed.  See, e.g., Adtrader, Inc., 2020 WL 6391210, at *2 (finding
compelling reasons to seal references to policies related to advertising fraud);
Medimpact Healthcare Sys., Inc. v. IQVIA Holdings, Inc., No. 3:19-cv-01865-GPC
(DEB), ECF 875 (S.D. Cal. Jan. 10, 2023) (J. Curiel) (finding compelling reasons to
seal testimony on “policies and procedures regarding the preservation of electronic
information” where party “d[id] business in an industry where the preservation and
confidentiality of information is highly regulated”) (appended as Ex. F).7
To the extent Plaintiffs oppose the sealing of Exhibit 150, the document is a
compilation of organizational charts that Judge Berg already sealed based on

6 For example, aspects of BANA’s Adequate Investigation Standard Operating
Procedures (Exs. 35 & 82; see also Exs. 1, 14, 36, 47, 80, 84, 85, 86) are utilized in
the same or similar fashion for many of BANA’s lines of business, not simply
prepaid.  See Robart Decl. ¶ 3; Ex. 14 (Daniels Tr.) at 135:9-20.  Similarly, updated
versions of certain claims review processes and trainings (e.g., Exs. 14, 79, 83, 87,
113) are still being utilized by BANA today.  Robart Decl. ¶ 3.  And BANA continues
to operate call centers to answer cardholders’ calls, both within prepaid and other
lines of business (Martin ¶ 10), and thus details regarding BANA’s call center
operations, including the different types of call centers utilized by BANA, the roles
and responsibilities of each (Exs. 66, 119, 114), and BANA’s contracts with its
vendors (Exs. 123, 126-130, 132), are still commercially sensitive.  See Xifin, Inc. v.
Sunshine Pathways, LLC, 2016 WL 5930313, at *3 (S.D. Cal. Oct. 12, 2016) (J.
Curiel) (finding compelling reasons to seal services agreement “that could expose
[party] to a competitive disadvantage if revealed”).
7  Contrary to Plaintiffs’ assertion that Exhibits 39, 40, 41 and 90 contain “only
general discussions about the Bank’s prepaid debit card program” (Opp. at 13), those
emails include estimated prepaid fraud losses, overall expenses of BANA’s Global
Transaction Services business, and BANA’s assessments of contractual
responsibility for prepaid benefits eligibility fraud.  See Exs. 39-41, 90.  As this court
previously found (ECF 266, 293), such information is commercially sensitive
information and, if revealed, could impact BANA’s business in other prepaid
programs or beyond.  See also Brady v. Grendene USA, Inc., 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); Nia v.
Bank of Am., N.A., 2024 WL 171659, at *6 (S.D. Cal. Jan. 12, 2024) (compelling
reasons to seal “knowledge of the exact number of customers who use various
documents as proof of residency” which “may give competitors an edge”).
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“compelling reasons.”  ECF 266.  Moreover, contrary to Plaintiffs’ claim (Opp. at
14), Exhibit 150 on its face relays more than the names of BANA leaders that are
available publicly.  Rather, it includes 48 pages depicting how BANA structures the
groups responsible for highly sensitive claim review and decisioning and its fraud
detection and monitoring strategies, among other banking responsibilities.  See Ex.
150; Robart ¶ 5.  These details are commercially sensitive, and if disclosed, there is
a risk a competitor banking institution could try to replicate BANA’s organizational
structures designed to combat fraud.  See, e.g., E.W. Bank, 2021 WL 3112452, at
*18-19 (sealing confidential onboarding processes, digital banking platform, fraud
management techniques, and verification of customer identities).
Personal details and transaction information.  Plaintiffs concede that there
are compelling reasons to seal documents referencing sensitive personal and financial
information of EDD cardholders.  Opp. at 14.  However, Plaintiffs contend that
cardholder transaction details and other personal information can be made public so
long as their information is anonymized.  Id. at 14-15.  Such data should be sealed
here, however, because there is a risk that personal, sensitive information could be
linked to the cardholders should their Alias IDs—which are unique identifiers used
by BANA for each individual’s account (see, e.g., Exs. 49, 59, 60, 98, 114, 146)—
become known.  See Nia v. Bank of Am., N.A., 2024 WL 171659, at *6 (S.D. Cal.
Jan. 12, 2024) (permitting sealing of exhibit reflecting customer data such as internal
deposit account and credit account closure data).8
Additionally, non-plaintiff customer complaints contain sensitive, personal

8 This is especially true for BANA’s interrogatory responses (Exs. 49, 59, 98, 140,
146), which contain highly personal information such as the receipt of unemployment
benefits, the denial of claims, suspicion of fraudulent behavior, repossession of
property, foreclosure and eviction—which many cardholders likely do not want
reflected on the public docket.  Additionally, BANA’s interrogatory responses in
Exhibit 49 identify cardholders who may be eligible for compensation under the
consent orders, Remediation Plans or individualized review process.  But not all of
those cardholders have received compensation and compensation decisions are
subject to change.  Ex. 49 at 10-13.  And that data reflects precise claims amounts
and personal information that cardholders could use to identify their own claims
despite those compensation decisions not being final.  See id.; Lennon ¶ 6.
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   CASE NO. 21-MD-02992-GPC-MSB

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information that courts have held overcomes the presumption of public access and
warrants sealing.  See Mot. at 9-10; see, e.g., Pryor v. City of Clearlake, 2012 WL
3276992, at *2 (N.D. Cal. Aug. 9, 2012) (sealing non-litigant’s prior arrest record).
Confidential regulator materials.  Finally, compelling reasons exist to seal
BANA’s Remediation Plans and Addenda with the OCC and CFPB (Exs. 74 & 147),
and documents showing BANA’s implementation of those Plans (Exs. 49, 59, 60, 98
& 146).  Plaintiffs’ contention (Opp. at 5, 8, 15-16) that they do not know whether
the regulators have asserted the bank examination privilege over the Plans is simply
false.  As Plaintiffs are more than well aware, the regulators designated the Plans
“Highly Confidential – Attorneys’ Eyes Only” as a condition to BANA producing
them to Plaintiffs, and they contain information the OCC deemed privileged and
confidential under its statutes and regulations.  This determination and condition is
clearly articulated in the regulators’ letters to BANA, which were provided to
Plaintiffs at their request.9  Standing alone, the regulators’ determination and
designation—which Plaintiffs readily agreed to when they accepted the documents
last year—should be a sufficient, compelling reason to seal the Plans and any
documents quoting from or referencing those Plans.  See, e.g., Erhart v. BofI Fed.
Bank, 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing information that
the OCC asserted bank examination privilege over but permitted to be produced
subject to confidentiality protections).
Moreover, notwithstanding the regulators’ views, the details within the Plans
and how BANA continues to implement the Plans are highly sensitive because they
could provide fraudsters with a roadmap for how to fraudulently seek additional
payments under the Plans.  Lennon ¶ 3.  Similarly, the data that BANA compiled to
respond to Plaintiffs’ discovery requests regarding BANA’s implementation of the
Remediation Plans (Exs. 49, 59, 98, 146) should also be sealed because BANA’s

9  If the Court desires, BANA can submit these letters to the Court for in camera
review or under seal as they too are Highly Confidential – Attorneys’ Eyes Only.
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efforts to implement the Plans is ongoing, and such data could be used to potentially
back into the confidential formulas in the Plans, and because they contain sensitive
personal information regarding cardholders.  Lennon ¶¶ 4-5.
Quotes and summaries of confidential exhibits.  Plaintiffs’ contention (Opp.
at 5-9) that they need not redact quotations or descriptions of confidential documents
that remain under seal is inconsistent with the terms of the Stipulated Protective
Order (ECF 82, § 3), and otherwise should be rejected.  See, e.g., Darisse v. Nest
Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal. June 2, 2016) (sealing class
certification motion and declarations that quote or reference confidential exhibits).
Plaintiffs do not offer merely “short quotations and general descriptions.”  See Opp.
at 6.  Rather, in many instances, Plaintiffs provide lengthy, detailed quotes excised
from the confidential exhibits.  E.g., ECF 324-1 at 11-12, 15, 33, 39; Exs. 1-4, 157.
To the extent Plaintiffs complain that they were required to seal certain portions of
their proposed class definitions, it is Plaintiffs that chose to define certain classes by
quoting privileged documents the regulators designated Highly Confidential.  As a
consequence, portions of those class definitions should be sealed.  Supra at 9-10.
Finally, Plaintiffs’ claim (Opp. at 6, 8-9, 11) that much of the provisionally
sealed portions of their papers are already in the public record is inaccurate.10  Indeed,
the vast majority of Plaintiffs’ references to the confidential exhibits are not in the
public record, including references to the 10 exhibits that have already been sealed
in this matter based on good cause or compelling reasons.  ECF 266, 293.
CONCLUSION
For the foregoing reasons and the reasons set forth in BANA’s opening briefs
(ECF Nos. 328, 337), BANA respectfully requests that the Court grant Defendant’s
Motions to Seal because compelling reasons support sealing.

10 Plaintiffs cite to a limited number of phrases that are purportedly in the public
record from the Parties’ briefing in connection with Plaintiffs’ motion to compel
executive ESI (ECF 287 at 20:4-21:4, 22:22-26, 2:28-23:14; ECF 300 at 4:20-22,
8:21-27) out of more than 250 pages of their MPA, expert reports and trial plan.
Case 3:21-md-02992-GPC-MSB     Document 344     Filed 10/03/24     PageID.7975     Page
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

   CASE NO. 21-MD-02992-GPC-MSB

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Dated:   October 3, 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.

Case 3:21-md-02992-GPC-MSB     Document 344     Filed 10/03/24     PageID.7976     Page
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DEFS.’ REPLY IN SUPPORT OF MOT. TO SEAL

   CASE NO. 21-MD-02992-GPC-MSB

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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 October 3, 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:
October 3, 2024

s/ James W. McGarry

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