Order Granting Class

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION,
Case No.:  21MD2992-GPC(MSB)
ORDER GRANTING CLASS
PLAINTIFFS’ MOTION FOR CLASS
CERTIFICATION; APPOINTING
CLASS REPRESENTATIVES; AND
APPOINTING CO-LEAD CLASS
COUNSEL
[REDACTED]
[Dkt. No. 324.]
Before the Court is Class Plaintiffs’ motion for class certification, appointing them
as class representatives for each of the classes and appointing Cotchett Pitre & McCarthy
LLP and Altshuler Berzon LLP to serve as co-lead class counsel.  (Dkt. No. 324.)
Defendant Bank of America, N.A. filed an opposition and Class Plaintiffs replied.  (Dkt.
Nos. 349, 378.)  A hearing was held on January 17, 2025.  (Dkt. No. 405.)  Based on
discussions during the hearing, Class Plaintiffs filed a third amended master consolidated
complaint on January 24, 2025.  (Dkt. No. 406.)
On February 7, 2025, Defendant filed a motion to stay the case pending the United
States Supreme Court review in Lab’y Corp. of Am. Holdings v. Davis, No. 24-0304.
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(Dkt. No. 415.)  After full briefing and hearing oral argument, (Dkt. Nos. 427, 433, 446),
the Court granted in part and denied in part Defendant’s motion to stay proceedings
pending Supreme Court review.  (Dkt. No. 448.)  The Court granted a stay as it
concerned class certification and dispositive motion practice but denied it as to expert
discovery and any discovery disputes.  (Id. at 9.)
On June 5, 2025, the Supreme Court dismissed the writ of certiorari in the Davis
case as improvidently granted.  Lab’y Corp. of Am. Holdings v. Davis, 605 U.S. __, 2025
WL 1583302, at *1 (2025).  As such, on the same day, the Court lifted the stay and
indicated it would issue its decision on Class Plaintiffs’ motion for class certification.
(Dkt. No. 492.)
Based on a review of the briefs, the supporting documentation, the applicable law,
and hearing oral argument, the Court GRANTS Class Plaintiffs’ motion for class
certification, appoints Plaintiffs to be class representatives and appoints Cotchett Pitre &
McCarthy LLP and Altshuler Berzon LLP to serve as co-lead class counsel.
Background
Class Plaintiffs Kuang Ting Chong, Candace Koole, Lindsay McClure, Azuri
Moon, Stephanie Moore, Roland Oosthuizen, Vanessa Rivera, J. Michael Willrich, and
Alex Yuan (collectively “Plaintiffs” or “Class Plaintiffs”), individually and on behalf of a
putative class, bring the operative third amended master consolidated complaint
(“TAMCC”) against Defendant Bank of America, N.A. (“Defendant” or “BANA”) for
allegedly mishandling, through unlawful policies and practices, reports of unauthorized
transaction claims, involving an ATM, brought by prepaid debit cardholders (“EDD
cardholders”) who were deemed eligible and received unemployment insurance benefits
with California’s Employment Development Department (“EDD”) during the height of
the COVID-19 pandemic in 2020-21 and causing them harm.  They allege, among other
things, that BANA violated its statutory and regulatory obligations under the Electronic
Funds Transfer Act (“EFTA”) by using its newly created automated fraud monitoring
program, Claim Fraud Filter, Indicator 1 (“CFF-1”) as the sole basis for summarily
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denying every EDD cardholders’ unauthorized transaction claims involving an ATM
without the mandated manual investigations.  (Dkt. No. 406, TAMCC.)  By relying solely
on the automated CFF-1 to combat the exponential increase of fraud during the COVID-
19 pandemic, Plaintiffs claim that BANA also summarily reversed or rescinded all
permanent credits issued to EDD cardholders and summarily froze EDD cardholders’
accounts.  (Id.)  Further, Class Plaintiffs complain that BANA knowingly understaffed its
Claims call center subjecting EDD cardholders to significant wait times in violation of
California common law.  (Id.)  Finally, they allege that BANA’s decision to provide
magnetic-stripe (“mag-stripe”) only debit cards, and not industry-standard EMV chip
cards, exposed EDD cardholders to significant fraud due to card “skimming” and
counterfeit card fraud violating California statutory and common law.  (Id.)
California’s EDD administers unemployment benefits in California, and between
2011 to February 2024, it exclusively contracted with BANA to distribute unemployment
insurance, disability insurance and paid family leave benefits to Californians through
bank-issued EDD prepaid debit cards.  (Dkt. No. 393-3, Chan Decl., Ex. 15, Chestnut
Depo. at 54:19-24; 75:8-13; 76:3-7; 129:2-131 (UNDER SEAL); Dkt. No. 225-2, Lennon
Decl. ¶ 3.)  As part of the contract, individuals receiving unemployment insurance
benefits from EDD were able to access their benefits through an EDD prepaid debit card
issued by BANA.  BANA’s relationship with EDD Cardholders was governed by the
EDD debit card account agreement which included the process through which EDD
cardholders could file disputes with BANA regarding alleged unauthorized transactions
on their accounts.  (Dkt. No. 350-10, Brys Decl., Ex. 9, Lorenzen Decl. ¶ 5; Dkt. No.
379-5, Chan Decl., Ex. 76.)
The relevant contract at issue, in effect from August 1, 2016 through July 31, 2021,
included a revenue-share agreement.  (Dkt. No. 393-3, Chan Decl., Ex. 15, Chestnut
1 Deposition page numbers are based on the pagination of the deposition transcript.
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Depo. at 42:8-10.)  Initially, all EDD debit cards were mag-stripe only cards.  (Dkt. No.
362-2, Chan Decl., Ex 16, Martin Depo. at 65:8-14 (UNDER SEAL).)  During the
COVID-19 pandemic (“pandemic”), these pre-paid debit cards were subject to rampant
third-party fraud and tens of millions of dollars were stolen from these bank accounts.
(See Dkt. No. 350-7, Brys Decl., Ex. 6, Letson Decl. ¶¶ 12, 15.)
The EDD prepaid debit cards are subject to the Electronic Funds Transfer Act
(“EFTA”), 15 U.S.C. §§ 1693 et seq., and its implementing Regulation E (“Reg E”), 12
C.F.R. §§ 1005.1 et seq. which regulates electronic fund transfers that directly affect
consumer accounts.  In brief, under the EFTA, once a consumer notifies BANA of any
“error” or “unauthorized electronic fund transfer transaction,” 15 U.S.C. § 1693f(f)(1),
BANA is required to “investigate the alleged error, determine whether an error has
occurred, and report or mail the results of such investigation and determination to the
consumer within ten business days.”  15 U.S.C. § 1693f(a).  A bank’s investigation
includes a review of its own records.  12 C.F.R. § 1005.11(c)(4); 12 C.F.R. § 1005, Supp.
I at 11(c)(4).
If the institution cannot complete the investigation within ten business days, it may
“provisionally recredit” the consumer’s account within ten business days of receiving
notice of an error and complete its investigation within forty-five days.  15 U.S.C. §
1693f(c).  If the financial institution discovers that an error occurred, it must promptly, no
later than one business day after the discovery, correct the error, 15 U.S.C. § 1693f(b),
but if the financial institution concludes after its investigation that an error did not occur,
it must provide an explanation of findings to the consumer within three business days
after the conclusion of the investigation.  15 U.S.C. § 1693f(d).  Ultimately, “the burden
of proof is upon the financial institution to show that the electronic fund transfer was
authorized or, if the electronic fund transfer was unauthorized, then the burden of proof is
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upon the financial institution to establish that the conditions of liability set forth in
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subsection (a)2 have been met." 15 U.S.C. § 1693g(b).
3 A.
BANA's Use of AISOP3 -EFTA Investigations Prior to September 28, 2020
4
Prior to September 28, 2020, BANA had applied its
5
which it claims adhered to the requirements
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under Reg E.4 (Dkt. No. 362-4, Brys Deel., Ex. 14, Daniels Depo. at 120:16-121:1;
7 124:24-125:6 (UNDER SEAL); Dkt. No. 366-11, Chan Deel., Ex. 35- (UNDER
8
SEAL); Dkt. No. 366-12, Chan Deel., Ex. 36 (UNDER SEAL); Dkt. No. 367-13, Chan
9 Deel., Ex. 82 (UNDER SEAL).)
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(Dkt.
. (Dkt. No. 362-
16 4, Chan Deel., Ex. 14, Daniels Depo. at 147:25-148:19; 150:13-151:20 (UNDER SEAL);
17
Dkt. No. 366-12, Chan Deel., Ex. 36 at -4539 (UNDER SEAL).)
18
. (Dkt. No. 362-4, Chan
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Deel., Ex. 14, Daniels Depo. at 147:25-148:19 (UNDER SEAL); Dkt. No. 366-12, Ex. 36
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at -4549 (UNDER SEAL).)
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B.
BANA's Use of CFF-1-EFTA Investigations After September 28, 2020
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BANA recognizes it has statutory and regulatory duties to address fraudulent
23 transactions, and therefore,
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2 Subsection (a) requires the consumer to notify the financial institution within 60 days of receiving
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documentation of the enor and the consumer's reasons. 15 U.S.C. § 1693g(a).
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4 Plaintiffs do not dispute that- complied with the investigation mandates of the EFTA.
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.  (Dkt. No. 382-2, Brys Decl., Ex. 6, Letson Decl. ¶ 6 at 2096 (UNDER SEAL).)
BANA also realize a fraud strategy cannot be 100% effective at identifying only
fraudulent activity and acknowledges that its fraud strategy may inconvenience
cardholders whose card activities appear to be fraudulent but are not.  (Dkt. No. 350-7,
Brys Decl., Ex. 6, Letson Decl. ¶ 7.)  Therefore, BANA, in implementing fraud
strategies, has to balance between protecting legitimate customers and combatting fraud.
(Id. ¶ 8.)
Starting in the Spring of 2020, BANA noticed and was informed by law
enforcement agencies and other third-party sources about unprecedented, enormous
large-scale fraud in the unemployment insurance (“UI”) programs due to the
opportunities created by the pandemic for benefits eligibility fraud and unauthorized
transaction claims that had not ever been seen.  (Dkt. No. 350-7, Brys Decl., Ex. 6,
Letson Decl. ¶ 12.)  As of January 2021, California’s State Auditor estimated nearly
$10.4 billion in fraudulent claims and over $32 billion of unemployment benefits stolen
and illegally issued in California.  (Id. ¶ 15.)
In May 2020, BANA learned of massive benefits eligibility fraud against state
unemployment programs where
.  (Dkt. No. 382-2, Brys Decl.,
Ex. 6, Letson Decl. ¶ 14 at 212 (UNDER SEAL).)
Because EDD was responsible for determining eligibility based on cardholders’
applications,
.  (Id. ¶ 17 at 213 (UNDER SEAL).)  BANA’s Global Financial Crimes (“GFC”)
team
6 Unless otherwise noted, page numbers are based on the CM/ECF pagination.
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.  (Id. ¶¶ 18, 19 at 213-14
(UNDER SEAL).)  This information was also publicly available on YouTube and other
social messaging platforms.  (Dkt. No. 350-7, Brys Decl., Ex. 6, Letson Decl. ¶ 19.)
During the first six months of the pandemic, BANA noted two key features in
fraud activity in State UI programs using BANA’s prepaid cards: 1)
; and 2)
.  (Dkt. No. 382-2, Brys Decl., Ex. 6, Letson
Decl. ¶ 21 at 214 (UNDER SEAL).)  While BANA
.  (Id. ¶¶ 22, 23 at 215 (UNDER SEAL).)
BANA’s fraud strategies for the UI programs created during the pandemic
.  (Id. ¶ 25 at 216 (UNDER SEAL.)  At issue in this case
was a fraud strategy
.  (Id. at 216-
17 (UNDER SEAL).)  The CFF
.  (Id. at 217 (UNDER SEAL).)
Starting in June 2020, unauthorized claims submitted by EDD cardholders
.
(Id. ¶ 26 at 217 (UNDER SEAL).)  BANA’s GFC, the Global Information Security
(“GIS”) and BANA’s Global Banking and Markets (“GBAM”)
.  (Id. ¶ 27 at 217
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(UNDER SEAL).)
.  (Id. (UNDER SEAL).)
.  (Id. (UNDER
SEAL).)
.  (Id. (UNDER
SEAL).)
Another type of fraud identified was
.  (Id. ¶ 28 at 218 (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
In order to combat the fraud, in late summer of 2020, the GFC and GIS teams were
directed to develop a fraud strategy
.  (Id. ¶ 30 at 218 (UNDER SEAL).)  They determined that
 (Id. ¶ 31 at 219 (UNDER SEAL).)  The Fraud
Filter was
.  (Id. ¶ 32 at
219 (UNDER SEAL).)
 the Fraud Filter
  (Id. (UNDER SEAL).)
The fraud filter was approved for use in the UI prepaid card programs in late September
2020.  (Id. ¶ 35 at 220 (UNDER SEAL).)
, BANA determined that the Fraud Filter
.  (Id. ¶
37 at 220 (UNDER SEAL).)
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.  (Id. ¶ 36 at 220 (UNDER SEAL).)
.  (Id.
(UNDER SEAL).)
From September 28, 2020 until June 8, 2021, when the PI was imposed, BANA
implemented the CFF as a basis to investigate and make decisions on certain error claims
or unauthorized transaction claims.  (Dkt. No. 366-24, Chan Decl., Ex. 49, BANA’s
Resp. to Interrog. 28 at 9-10 (UNDER SEAL); Dkt. No. 362-2, Chan Decl., Ex. 16,
Martin Depo. at 124:20-125:14 (UNDER SEAL).)  The CFF involved three indicators,
Indicator 1, Indicator 2 and Indicator 3, but only Indicator 1 (“CFF-1”) is relevant and
subject to this litigation.7  CFF Indicator 1 was triggered when a claim involved “PIN
enabled transactions claiming a PIN compromise.”  (Dkt. No. 366-24, Chan Decl., Ex.
49, BANA’s Resp. to Interrog. 28 at 9-10 (UNDER SEAL); see also Dkt. No. 366-22,
Chan Decl., Ex. 47 at 17 (UNDER SEAL).)  This meant the CFF-1 applied to ATM
withdrawals requiring the use of a PIN
.  (Dkt. No. 393-4, Chan
7 Indicator 2 was applied to
(Dkt. No. 366-24, Chan Decl., Ex. 49, BANA’s Resp. to Interrog. 28 at 9-10 (UNDER SEAL).)
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Decl., Ex. 17, Letson Depo. at 92:15-23 (UNDER SEAL); Dkt. No. 362-2, Chan Decl.,
Ex. 16, Martin Depo. at 125:18-126:8 (UNDER SEAL).)
Under this new anti-fraud system, once an EDD debit cardholder submits an
authorized transaction claim, the CFF is run
, and if triggered,
the claim is automatically denied
, the cardholders receives a letter
denying the claim and giving them the option to submit a reconsideration request.  (Dkt.
No. 362, Chan Decl., Ex. 14, Daniels Depo. at 52:21-53:9; 234:13-21 (UNDER SEAL);
(Dkt. No. 366-24, Chan Decl., Ex. 49, BANA’s Resp. to Interrog. 28 at 9 (UNDER
SEAL).)
 The denial letter was a template form letter that automatically populated the
cardholder’s information.  (Dkt. No. 362, Chan Decl., Ex. 14, Daniels Depo. at 53:12-
54:12; 220:12-221:11 (UNDER SEAL).)  The uniform template denial letter which was
provided to all EDD cardholders’ unauthorized transaction claims involving an ATM
stated, “Your claim has been closed because we believe the account or the claim have
been the subject of fraud or suspicious activity.  Any temporary credit that was applied to
your account related to this claim, including any related reimbursement of fees, has been
or will be debited from your account and reflected in your available balance, if any.”
(Dkt. No. 324-55, Chan Decl., Ex. 52.)  The letter further stated, “If you contact us by
phone or in writing, you may request that we reopen your claim for further consideration.
You will be asked to give us information, including any documents you may have, to
support your claim.  You have the right to request documents, if any, that we relied on in
making our determination.”  (Id.)
If a cardholder submitted an unauthorized transaction claim based on an ATM
withdrawal, it automatically triggered CFF-1 and the claim was summarily denied
.
(Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at 162:1-25 (UNDER SEAL); Dkt.
No. 393-4, Chan Decl., Ex. 17, Letson Depo. at 93:20-94:5, 192:7-14 (UNDER SEAL).)
CFF-1 did not take into account the
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.
(Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at 129:16-132:4 (UNDER SEAL).)
CFF was merely
.  (Id. (UNDER SEAL.).)
While the CFF was in effect, it was the bank’s policy and practice to apply the CFF
to 100% of incoming unauthorized transaction claims brought by EDD debit cardholders.
(Dkt. No. 362, Chan Decl., Ex. 14, Daniels Depo. at 42:3-8 (UNDER SEAL).)  Further,
because
.  (Dkt. No. 362, Chan Decl., Ex. 14, Daniels Depo. at 49:24-
50:6 (UNDER SEAL); Dkt. No. 368-36, Chan Decl., Ex. 156 at -426938 (UNDER
SEAL).)  According to BANA,
.  (Dkt. No. 362, Chan Decl., Ex. 14, Daniels Depo. at 247:16-248:14.)
C.
BANA’s Use of CFF-1 to Rescind Permanent Credits Paid on ATM claims
Starting on September 28, 2020, BANA also retroactively applied its CFF to all
claims submitted since April 1, 2020 that it had previously investigated and resolved in
EDD cardholders’ favor
; therefore, despite the prior
investigation, if the claim triggered the CFF, the account was frozen and the claims
denied.  (Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at 179:13-180:1 (UNDER
SEAL); Dkt. No. 362, Chan Decl., Ex. 14, Daniels Depo. at 234:24-236:5 (UNDER
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SEAL).)  This applied to claims brought before the CFF took effect and who had their
prior unauthorized claims paid with permanent credits.  (Dkt. No. 362, Chan Decl., Ex.
14, Daniels Depo. at 234:24-235:9.)  The accounts were frozen and permanent credits
rescinded without any notice.  (Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at
224:17-225:2.)
D.
BANA’s Use of CFF-1 to Freeze Account
BANA
.  (Dkt. No. 382-2, Brys
Decl., Ex. 6, Letson Decl. ¶ 9 (UNDER SEAL); Dkt. No. 382-2, Brys Decl., Ex. 7,
Martin Decl. ¶ 4 (UNDER SEAL).)
.  (Dkt. No. 362-2, Chan Decl., Ex. 16, Martin
Depo. at 180:10-22 (UNDER SEAL).)  For the cardholder,
.  (Id. at 182:11-15 (UNDER SEAL).)
.  (Dkt. No. 382-2, Brys Decl., Ex. 6, Letson Decl. ¶ 9 (UNDER SEAL);
Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 4 (UNDER SEAL).)
.  (Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at 183:3-6
(UNDER SEAL).)
.  (Dkt. No. 382-2, Brys Decl., Ex. 6, Letson Decl. ¶ 9 (UNDER SEAL);
Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 4 (UNDER SEAL).)
.  (Dkt. No. 362-2,
Chan Decl., Ex. 16, Martin Depo. at 182:25-183:2 (UNDER SEAL).)  Once frozen, the
cardholders were directed to EDD to authenticate their identities in order to unfreeze their
accounts because BANA believed that EDD would be better positioned to authenticate
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accounts in order to restore access.  (Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 5
(UNDER SEAL).)  However, at the time, EDD was unable to handle the incoming
inquiries from cardholders about their accounts
.  (Dkt. No.
382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 6 (UNDER SEAL).)
Between September 28, 2020 to March 18, 2021, BANA automatically froze
accounts that triggered the CFF.  (Dkt. No. 362-2, Chan Decl., Ex. 16, Martin Depo. at
221:11-18 (UNDER SEAL).)  At first, accounts were initially frozen on September 28,
2020, then unfrozen from October 2020 through December 2020, and then later frozen
again from December 2020 to March 18, 2021.  (Id. at 222:9-12; 223:1-224:4 (UNDER
SEAL).)  No notice was provided to cardholders before freezing their accounts but a
letter was sent a few days after the freeze.  (Id. at 224:17-225:14.)  The freeze prevented
cardholders from accessing the funds in their accounts and barred EDD from depositing
on-going benefits.  (Id. at 224:5-16.)  BANA explains that when the CFF was first
implemented, cards that triggered the CFF were frozen because
.  (Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 5 (UNDER SEAL).)
.  (Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 6 (UNDER SEAL).)
.  (Id.
(UNDER SEAL).)  Therefore, cardholders could regain access by
.  (Id. ¶ 7 (UNDER SEAL.)
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Starting March 18, 2021, BANA stopped using the CFF to automatically freeze
EDD cardholder accounts and instead “blocked” the accounts which prevented
cardholders from accessing funds in their account.  (Dkt. No. 362-2, Chan Decl., Ex. 16,
Martin Depo at 301:18-302:25 (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
E.
Understaffing Claims Call Center
While BANA was implementing its new CFF fraud strategies,
.  (Dkt. No. 393-1, Chan
Decl. Ex. 3, Minnucci Expert Report ¶ 43 (UNDER SEAL).)  From September 13, 2020
to November 21, 2020, the average speed to answer (“ASA”), “an industry-standard
metric that reflects the average amount of time a customer is kept waiting on hold before
their call is initially answered”, was
 in contrast to the average ASA of 1.25
minutes among 214 call centers surveyed in 2020.  (Id. ¶¶ 12, 43-46 (UNDER SEAL).)
The wait times for all EDD debit cardholders during this two-month period far exceeded
any industry standard norms and on average cardholders waited
 minutes longer than
they would have had BANA complied with industry-standard response times.  (Id. ¶ 13
(UNDER SEAL).)  According to Plaintiff’s expert, BANA should have known that
.  (Id. ¶ 15 (UNDER SEAL).)
F.
EMV Chip Card
Initially, all EDD debit cards were mag-stripe only cards.  (Dkt. No. 362-2, Chan
Decl., Ex 16, Martin Depo. at 65:9-14 (UNDER SEAL).  Yet, since 2014, BANA
included EMV chips on its other consumer and small business debit card accounts.  (Dkt.
No. 324-26, Chan Decl., Ex. 23; Dkt. No. 362-2, Chan Decl., Ex 16, Martin Depo. at
61:19-23.)  BANA was aware, as of 2014, that EMV chips increase security and protect
cardholders from fraud.  (Dkt. No. 362-2, Chan Decl., Ex 16, Martin Depo. at 64:7-13.)
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 (Dkt. No. 366, Chan Decl., Ex. 24 at 2
(UNDER SEAL).)
.  (Dkt. No. 366-4, Chan Decl. Ex. 28 at 2 (UNDER SEAL).)
In July 2021, BANA began issuing EDD debit cards with EMV chips.  (Dkt. No.
362-2, Chan Decl., Ex 16, Martin Depo. at 65:4-7 (UNDER SEAL).)  Initially the EDD
debit cards did not have EMV chips because the contract with EDD did not provide for
chips and BANA needed to get permission and work with EDD to provide the EMV
chips.  (Id. at 65:15-20 (UNDER SEAL).)
The parties provide competing experts disputing the reasons why
.  (Compare Dkt. No. 324-5, Chan Decl.,
Ex. 2 Cloninger Expert Report with Dkt. No. 350-5, Brys Decl., Ex. 4, Joseph Expert
Report.)  Those factual disputes going to the merits of the claim are not to be resolved at
class certification.  See Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC
(“Olean”), 31 F.4th 651, 664-65 (9th Cir. 2022) (en banc) (“district court is limited to
resolving whether the evidence establishes that a common question is capable of class-
wide resolution, not whether the evidence in fact establishes that plaintiffs would win at
trial.  While such an analysis may entail some overlap with the merits of the plaintiff's
underlying claim, the [m]erits questions may be considered [only] to the extent [ ] that
they are relevant to determining whether the Rule 23 prerequisites for class certification
are satisfied[.]”) (internal citations and quotation marks omitted)).
G.
Class Plaintiffs’ Experiences with CFF-1
1.
Kuang Ting Chong
Kuang Ting Chong (“Chong”) began receiving EDD unemployment insurance
benefits through a BANA EDD debit card with a magnetic stripe that was linked to a
BANA EDD debit card account in June 2020.  (Dkt. No. 324-8, Chan Decl., Ex. 5, Chong
Decl. ¶¶ 2, 3.)  On July 20, 2020, when Chong tried to withdraw cash from his EDD debit
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card account at a BANA branch ATM in Monterey Park, CA, the ATM screen stated that
he had reached his daily withdrawal limit.  (Id. ¶ 4.)  He realized there was an
unauthorized ATM withdrawal because he had not withdrawn any cash earlier that day.
(Id.)  He immediately went home, checked his EDD debit card account and saw one
ATM withdrawal for $1,000 on the same day that he had not authorized and was not
aware.  (Id.)  He then printed out the transaction record, went to a BANA branch location
but the teller informed him that the branch could not help him and instructed him to call
BANA instead.  (Id. ¶ 5.)  After leaving the branch, he called BANA’s customer service
and filed a claim for the unauthorized transaction informing the representative that he did
not make or authorize the $1,000 withdrawal and sought credit for the amount taken.  (Id.
¶ 6.)  He also informed the representative that the $1,000 withdrawal was made in
Alhambra, a different city than his usual transactions and the amount was about double
his typical transactions.  (Id.)  Around July 30, 2020, BANA provisionally credited his
account $1,000.  (Id. ¶ 7.)  On September 2, 2020, BANA mailed a letter that informed
him that the investigation of the disputed transaction was completed and the $1,000
provisional credit was now permanent.  (Id. ¶ 8.)  However, on September 28, 2020,
BANA froze his account and it remained frozen until October 4, 2020.  (Id. ¶ 9.)  He was
not provided with any notice that BANA would freeze his account or an explanation why
it was frozen.  (Id.)  In a letter dated October 2, 2020, BANA informed him that the
unauthorized transaction he had reported had been closed stating “we believe the account
or the claim have been the subject of fraud or suspicious activity.  Any temporary credit
that was applied to your account related to this claim, including any related
reimbursement of fees, had been or will be debited from your account and reflected in
your available balance, if any.”  (Id. ¶ 10.)  On October 4, 2020, BANA rescinded the
$1,000 permanent credit creating a negative balance in his account.  (Id. ¶ 11.)  Even
though he continued receiving EDD benefits in his EDD debit card account, BANA
denied him access because the funds were applied against the negative account balance
created by it.  (Id.)  He repeatedly called BANA to obtain the $1,000 permanent credit
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that had been rescinded as well as the additional EDD funds that he was unable to access
due to the negative balance BANA created in his account when it rescinded the $1,000.
(Id. ¶ 12.)  Between September 28, 2020 and November 15, 2020, Chong called BANA
at least seven separate occasions, sometimes making multiple calls, waiting on hold for
hours and being shuffled between multiple agents in one day.  (Id. ¶ 13.)  He estimates
that he spent more than one hour on hold each time he called and nearly three hours on
the phone with a BANA representative to resolve these issues.  (Id.)
Chong filed a class action lawsuit in the Central District of California in November
2020.  (Id. ¶ 14.)  In a letter dated December 10, 2020, BANA stated that it had
performed an additional review of his claim and had credited him the $1,000 which was
received 143 days after he submitted his unauthorized transaction claim and 67 days after
BANA rescinded the $1,000 credit.  (Id.)
2.
Candace Koole
Candace Koole (“Koole”) began receiving EDD unemployment insurance benefits
through a BANA EDD debit card with a magnetic stripe that was linked to a BANA EDD
debit card account in April 2020.  (Dkt. No. 324-9, Chan Decl., Ex. 6, Koole Decl. ¶¶ 2,
3.)  On December 30, 2020, when she tried to use her EDD debit card to buy groceries,
the card was repeatedly declined at checkout.  (Id. ¶ 4.)  She left the groceries at the store,
went home to check her EDD debit card account balance, and was surprised that her
account had only $8.37, down from over $9,000 the week before.  (Id.)  Her online
account statement showed that daily $1,000 ATM withdrawals were made from
December 19 to 26, 2020 and an ATM withdrawal on December 27, 2020 for $760
totaling $8,760 of ATM withdrawals that she had not authorized and was unaware.  (Id.)
Koole immediately contacted BANA to ask about the status of her account, report
the unauthorized transactions, and sought to get reimbursed for the money that had been
taken out of her account.  (Id. ¶ 5.)  Later that same day, BANA froze her account.  (Id.)
In early January 2021, Koole received a letter from BANA dated December
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31, 2020, one business day after she had submitted her unauthorized transaction claim,
stating that it had closed her claim and would not be reimbursing her the $8,760 taken
from her account.  (Id. ¶ 6.)  The letter did not provide an explanation for the denial
stating only: “Your claim has been closed because we believe the account or the claim
have been the subject of fraud or suspicious activity.”  (Id.)
Koole’s EDD debit card account remained frozen for 77 days, from December 31,
2020, to March 18, 2021.  (Id. ¶ 7.)  During that period, she could not access the EDD
benefits that were in her account at the time of the freeze, and she could not receive or
access any new periodic EDD benefits payments that she would have received and would
have been able to use if BANA had not frozen her account.  (Id.)  Through discovery in
this litigation, she learned that on March 18, 2021, BANA converted her account status
from frozen to blocked but it still prevented her from being able to access any of the EDD
benefits that were in her account.  (Id.)  BANA unblocked her account on April 5, 2021,
after she filed this lawsuit.  (Id.)
On April 6, 2021, five days after the Consolidated Class Action Complaint
was filed and 96 days after she submitted her unauthorized transaction claim to BANA,
BANA credited her the $8,760 that had been stolen from her.  (Id. ¶ 8.)  She received a
letter stating that BANA had “completed an additional review” of her claim and that her
account would be credited in the full claim amount “[a]s a result of [BANA’s] research.”
(Id.)
3.
Lindsay McClure
Lindsay McClure (“McClure”) began receiving EDD unemployment insurance
benefits through a BANA EDD debit card with a magnetic stripe that was linked to a
BANA EDD debit card account in April 2020.  (Dkt. No. 324-10, Chan Decl., Ex. 7,
McClure Decl. ¶¶ 2, 3.)  On November 30, 2020, she received a text notification of a
balance inquiry and cash withdrawal of $1,003 from her EDD debit card account at an
ATM in Los Angeles, CA.  (Id. ¶ 4.)  At the time of the unauthorized ATM withdrawal,
she was in El Cajon, CA about 127 miles away from Los Angeles.  (Id.)  Immediately
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after receiving the text notification, she called BANA to report the unauthorized
transaction of $1,003 and to get reimbursed for the money that had been taken out of her
account.  (Id.)  When she reached the claims department, the representative responded
that she needed to call back the following morning to the claims department at 5:00 a.m.
(Id.)
The following morning on December 1, 2020, she called BANA back around 5:00
a.m. to initiate a claim.  (Id. ¶ 6.)  She informed the BANA representative that the $1,003
withdrawal was not made or authorized by her, that it was made more than 100 miles
from where she lived and where she typically used her BANA EDD debit card, and that
she did not even know it was possible to withdraw more than a few hundred dollars at a
time.  (Id.)  The BANA representative confirmed McClure had successfully filed a claim
and said that it would take 30 to 45 business days to complete a thorough investigation.
(Id.)  McClure subsequently received a letter from BANA dated December 2, 2020, just
one business day after she submitted her unauthorized transaction claim, stating that
BANA had closed her claim and would not be reimbursing her the $1,003 taken from her
account.  (Id. ¶ 7.)  The letter did not provide an explanation for the denial, stating only:
“Your claim has been closed because we believe the account or the claim have been the
subject of fraud or suspicious activity.”  (Id.)
On December 20, 2020, she could no longer access the benefits in her EDD debit
card account after her EDD debit card was declined at a drive-through.  (Id. ¶ 8.)  At the
time, her unemployment insurance benefits were in the amount of about $660 biweekly.
(Id.)  Immediately after, she called BANA’s customer service department, and a customer
service representative informed that her account had been frozen.  (Id. ¶ 9.) The
representative also told her that, because of the freeze, BANA could not do anything
further and she would have to contact EDD to unfreeze her account.  (Id.)  She was not
provided any notice about the freeze of her account.  (Id. ¶ 8.)  Weeks later, she received
a letter from the BANA dated February 1, 2021, stating that a “freeze (or hold) has been
placed in your account.”  (Id. ¶ 9.)  The letter further stated that she would be unable to
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use her EDD debit card or access the money in her EDD debit card account while the
freeze was in place.  (Id.)
After she filed a class action lawsuit against BANA on January 26, 2021, she
received a letter from BANA dated January 27, 2021, 57 days after she submitted her
unauthorized transaction claim, stating her EDD debit card account was credited the
$1,003 that had been stolen.  (Id. ¶ 10.)  But her account remained frozen and she
remained unable to access those reimbursed funds.  (Id.)  Her EDD debit card account
remained frozen for 55 days, from December 17, 2020, to February 10, 2021.  (Id. ¶ 11.)
At the time of the freeze, her account balance was $229.31.  (Id.)  During that period, she
could not access any of the EDD benefits as of the time of the freeze, and she could not
receive or access any new periodic EDD benefits payments that she would have received
and would have been able to use if BANA had not frozen her account including her
$1,003 claim credit received on January 27, 2021.  (Id.)
4.
Azuri Moon
Azuri Moon (“Moon”) began receiving EDD unemployment insurance benefits
through a BANA EDD debit card with a magnetic stripe that was linked to a BANA EDD
debit card account in June 2020.  (Dkt. No. 324-11, Chan Decl., Ex. 8, Moon Decl. ¶¶ 2,
3.)  Around October 20, 2020, he tried to buy lunch at a restaurant with his EDD debit
card, but the transaction was declined for insufficient funds.  (Id. ¶ 4.)  When he checked
his EDD debit card account, he saw two ATM withdrawals totaling $1,800 that he had
not authorized.  (Id.)
On October 23, 2020, after several previous attempts to reach someone at
BANA by calling the number listed on the back of his card, he was finally able to get
through to BANA’s customer service department to report these unauthorized
transactions and sought a credit for the $1,800 that was stolen.  (Id. ¶ 5.)  Between
October 20 and 23, 2020, he spent approximately eleven hours on the phone, on multiple
calls, before he was able to get through to anyone in BANA’s claims department.  (Id.)
When he finally reached the claims department, he made a claim concerning the two
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unauthorized ATM withdrawals totaling $1,800 explaining that he had never given or
disclosed the PIN for his EDD debit card to anyone, had never authorized anyone to use
his EDD debit card, and did not authorize the two ATM withdrawals.  (Id. ¶ 6.)  BANA’s
representative told him that BANA had opened his claim and would investigate and make
a decision on his claim within 30-45 days.  (Id.)
In mid-November, since he had not received any communication from BANA, he
contacted BANA to get an update.  (Id. ¶ 7.)  He was told that BANA would not be
returning the money because he was liable for the disputed transactions.  (Id.)  The
BANA representative told him that she should file a police report, write a detailed
description of what happened and fax it to BANA.  (Id.)  He complied with BANA’s
directions and faxed a police report.  (Id.)
He later learned during discovery that BANA had mailed him a letter dated
October 28, 2020, which he did not receive, informing that it had closed his claim and
would not be reimbursing the $1,800 taken from his account.  (Id. ¶ 8.)  The letter did not
provide an explanation for the denial, stating only: “Your claim has been closed because
we believe the account or the claim have been the subject of fraud or suspicious activity.”
(Id.)  During October 20, 2020 and November 15, 2020, he repeatedly called BANA’s
customer service to obtain assistance with his unauthorized transaction claim and
estimates he spent over an hour on hold each time he called and several more hours on
the phone with BANA’s representative trying to resolve the issues.  (Id. ¶ 9.)
In mid-December 2020, nearly a month after faxing the police report and other
requested documents to BANA, he called to get an update.  (Id. ¶ 10.)  BANA’s
representative told him it did not receive his fax.  (Id.)  Due to the confusion between
claim number and case number and because the information on the fax reflected a
mistake, it derailed his fraud claim.  (Id.)  He then re-faxed everything that BANA
requested.  (Id.)
On December 17, 2020, he could no longer access his EDD benefits which was
about $600 biweekly.  (Id. ¶ 11.)  Shortly after he discovered that his account had been
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frozen, he contacted BANA’s customer service department, and after calling multiple
times and waiting on hold for more than an hour each time, he finally reached a customer
service representative who said that his account had been frozen.  (Id. ¶ 12.)  The BANA
representative also told him that, because his account was frozen, it could not do anything
further either to address his earlier unauthorized transaction claim or to enable him to
access his frozen benefits funds.  (Id.)  BANA froze his account without any notice or
explanation.  (Id. ¶ 13.)  He later learned, through discovery in this case, that BANA
froze his account on December 17, 2020, based on the application of its Claim Fraud
Filter.  (Id.)  Moon’s EDD debit card account remained frozen for 91 days, from
December 17, 2020, to March 18, 2021.  (Id. ¶ 14.)  During that period, he could not
access any of the EDD benefits that were in his account as of the time of the freeze and
could not receive or access any new periodic EDD benefits payments that he would have
received and would have been able to use if BANA had not frozen his account.  (Id.)
Through discovery in this litigation, he learned that on March 18, 2021, BANA converted
his account status from frozen to blocked but he was still not able to access any of the
EDD benefits that were in his account.  (Id.)  BANA finally unblocked his account on
April 15, 2021, after he filed this lawsuit.  (Id.)  On April 5, 2021, four days after the
Consolidated Class Action Complaint was filed and 164 days after he submitted his
unauthorized transaction claim to BANA, it finally credited his debit card account the
$1,800 that had been stolen from him in October 2020.  (Id.)
5.
Stephanie Moore
Stephanie Moore (“Moore”) began receiving EDD unemployment insurance
benefits through a BANA EDD debit card with a magnetic stripe that was linked to a
BANA EDD debit card account in June 2020.  (Dkt. No. 324-12, Chan Decl., Ex. 9,
Moore Decl. ¶¶ 2, 3.)  On July 18, 2020, her EDD debit card was declined when she tried
to make a purchase.  (Id. ¶ 4.)  She checked her EDD debit card account and saw two
transactions from the same day, an ATM withdrawal in the amount of $1000 and a
purchase from Target in the amount of $482.13, that she had not authorized.  (Id.)
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Within minutes of discovering the unauthorized transactions, she called BANA and
reported the unauthorized transactions and asked for credit in the amount of $1,482.13
that was stolen.  (Id. ¶¶ 5-6.)  Around July 30, 2020, BANA provisionally credited the
$1,482.13 to her account, and on August 31, 2020, BANA mailed a letter informing her
that the $1,482.13 provisional credit was now permanent and that “We’ve completed
our investigation of this disputed transaction. The provisionally issued credit for
$1,482.13 is now permanent.”  (Id. ¶ 7.)
On September 30, 2020, when she attempted to use her EDD debit card to
purchase a tire for her vehicle, the transaction was declined.  (Id. ¶ 8.)  She then
attempted to check the balance on her EDD debit card account but was unable to log into
her account.  (Id.)  Through discovery produced in this litigation, she learned BANA
froze her account between September 28, 2020 and October 4, 2020.  (Id.)  Then, on
October 4, 2020, BANA rescinded the $1,482.13 permanent credit creating a negative
balance in her account.  (Id. ¶ 9.)  On October 5, 2020, she called BANA’s customer
service to ask about the rescinded $1,482.13 credit and was informed that the funds were
taken back by EDD, and because of this, BANA would not be able to assist her any
further.  (Id. ¶ 10.)
Between September 30, 2020, and November 15, 2020, Moore called BANA at
least 15 separate times in an attempt to resolve the issues stemming from the
rescinded credit and freeze of her EDD debit card account and estimates she spent over
an hour on hold each time she called BANA during that time.  (Id. ¶ 11.)  Further, during
those calls, BANA gave her conflicting information but never afforded her a way to
regain access to her rescinded credits.  (Id.)  One BANA representative told her that there
had been a glitch in the system and her funds would be returned shortly, but they were
not.   (Id.)  At a later point, she was told the investigation was reopened.  (Id.)  She even
asked for documentation regarding the investigation, but never received any.  (Id.)
After she filed a class action lawsuit against BANA in November 2020, she
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received a letter from BANA dated December 9, 2020, stating that it had conducted an
additional review of her claim and had credited her the $1,482.13 that had been stolen
from her in September 2020.  (Id. ¶ 12.)  She received the credit 144 days after she
submitted her claim for unauthorized transaction and 66 days after BANA rescinded the
$1,482.13 credit.  (Id.)
6.
Roland Oosthuizen
Roland Oosthuizen (“Oosthuizen”) began receiving EDD unemployment insurance
benefits through a BANA EDD debit card with a magnetic stripe that was linked to a
BANA EDD debit card account in April 2020.  (Dkt. No. 324-13, Chan Decl., Ex. 10,
Oosthuizen Decl. ¶¶ 2, 3.)  Around September 28, 2020, he logged in his EDD debit card
account online and noticed daily unauthorized withdrawals from BANA’s ATMs on five
consecutive days beginning September 24, 2020 through September 28, 2020 in the
amount of $1,000 each, totaling $5,000.  (Id. ¶ 4.)  Immediately, Oosthuizen used the
online portal to suspend his card and then called BANA to report the unauthorized
withdrawals and get reimbursed for the money taken from his account.  (Id. ¶ 5.)  He
spent three hours on hold before being disconnected.  (Id.)  The next day, after holding
for about two and a half hours, he reached a representative in the claims department.
(Id.)  He identified the specific ATM unauthorized withdrawals and informed the
representative that he had the card in his possession and did not authorize anyone to make
the withdrawals.  (Id.)  He was told that his claim had been filed and would be
investigated.  (Id.)
In mid-October 2020, he received a letter from BANA dated October 1, 2020, one
business day after he filed his claim, informing him that BANA had closed his claim and
would not be reimbursing the $5,000 taken from his account.  (Id. ¶ 6.)  The letter
provided no explanation and stated only that “Your claim has been closed because we
believe the account or the claim have been the subject of fraud or suspicious activity.”
(Id.)  After receiving BANA’s letter denying his claim, he called BANA to re-open his
claim.  (Id.)  A BANA representative advised him to send information about his claim
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and any police report he had filed.  (Id. ¶ 7.)  On November 5, 2020, he faxed a written
statement about the theft, a request to re-open his claim with information about the police
report he filed, and other documentation showing he was at work when some of the
unauthorized ATM withdrawals occurred.  (Id. ¶ 8.)  He also asked BANA to provide
him with the information it had discovered in any investigation it conducted before
denying his fraud claims but he never received a response.  (Id.)
After he filed a class action lawsuit against BANA on January 26, 2021, he
received a letter from BANA dated January 27, 2021, stating that it “completed an
additional review” of his claim and, “[a]s a result of [BANA's] research” credited him
with the $5,000 that had been stolen from him the previous September.  (Id. ¶ 10.)  He
received the credit 120 days after he submitted his unauthorized transaction claim to
BANA.  (Id.)  Between September 28, 2020 and November 15, 2020, he called BANA on
multiple occasions concerning the unauthorized transaction claims typically waiting on
hold for more than an hour and often not being able to reach a representative.  (Id. ¶ 9.)
7.
Vanessa Rivera
Vanessa Rivera (“Rivera”) began receiving EDD unemployment insurance benefits
through a BANA EDD debit card with a magnetic stripe that was linked to a BANA EDD
debit card account in January 2020 and from April 2020 to August 2021.  (Dkt. No. 324-
14, Chan Decl., Ex. 11, Rivera Decl. ¶¶ 2, 3.)
On January 29, 2021, Rivera got a text notification that the balance on her EDD
debit card account was $4.17.  (Id. ¶ 4.)  She was shocked because she knew she had over
$800 remaining in the account.  (Id.)  She immediately logged into her EDD debit card
account found that someone had conducted a balance inquiry from an ATM in Newport
Beach, CA, about an hour away from where she lives and withdrew $800.  (Id.)   She
then called BANA’s number to report these unauthorized transactions and to credit her
EDD debit card account for the $800 that was stolen.  (Id. ¶ 5.)
When she finally reached BANA, the first BANA representative transferred her to
another department.  (Id. ¶ 6.)  She then spoke with a second BANA representative and
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made a claim concerning the unauthorized ATM withdrawal totaling $800.  (Id.)  She
explained that she did not make or authorize the $800 withdrawal, and she had never
given or disclosed the PIN for her EDD debit card to anyone, had never authorized
anyone to use her EDD debit card, and was not in Newport Beach, CA on the day of the
unauthorized withdrawal.  (Id.)  She was provided a claim number and she understood
that the claim would be investigated.  (Id.)
On February 4, 2021, she called BANA again and was told that the representative
she had spoken with on January 29, 2021 never actually submitted a claim and that
person had just put a “note” in her account and sent her a new card.  (Id. ¶ 7.)  The
representative informed her that, this time, she had successfully submitted the fraud claim
for investigation.  (Id.)
In a letter dated February 5, 2021, one day after the BANA representative
submitted her fraud claim, BANA informed her that her claim was closed and she would
not be reimbursed for the $800 taken from her account and without explanation stated,
“Your claim has been closed because we believe the account or the claim have been the
subject of fraud or suspicious activity.”  (Id. ¶ 8.)
On February 6, 2021, she received a replacement card in the mail and when she
tried to activate the card online, she was not allowed to access her account.  (Id. ¶ 9.)  She
then called the number on the back of the card to activate it and a BANA representative
told her that her account was frozen due to suspicious activity and fraudulent charges.
(Id.)  BANA did not provide any notice before freezing the account.  (Id.)  Her EDD
debit card remained frozen for 41 days from February 5, 2021 to March 18, 2021.  (Id. ¶
10.)  She was not able to access any of her EDD benefits that were in her account as of
the time of the freeze and could not receive or access any new periodic EDD benefits
payments she would have received and would have been able to use if BANA had not
frozen her account.  (Id.)  She called BANA repeatedly informing she had verified her
identity with EDD, expressed the extreme hardship this account freeze imposed on her,
and received conflicting information from BANA representatives about what she could
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do to get BANA to unfreeze her account.  (Id.)  Through documents produced in this
litigation, she later learned that on March 18, 2021, BANA converted her account status
from frozen to blocked but she was still not able to access her EDD benefits.  (Id.)
BANA unblocked her account on April 20, 2021 after she filed this litigation.  (Id.)
On June 21, 2021, after the Consolidated Class Action Complaint was filed
and 140 days after she submitted her unauthorized transaction claim, BANA finally
credited her the $800 to her EDD debit card account that had been stolen from her in
January 2021.  (Id. ¶ 11.)
8.
J. Michael Willrich
J. Michael Willrich (“Willrich”) began receiving EDD unemployment insurance
benefits through a BANA EDD debit card with a magnetic stripe that was linked to a
BANA EDD debit card account in April 2020.  (Dkt. No. 324-15, Chan Decl., Ex. 12,
Willrich Decl. ¶¶ 2, 3.)  Around October 27, 2020, he discovered that there had been 27
unauthorized transactions on his EDD debit card account from October 10, 2020 to
October 26, 2020.  (Id. ¶ 4.)  The unauthorized transactions included 21 charges at a store
in the State of Washington that he had never heard of or shopped at, two ATM
transactions for $1,000 each and a $700 ATM withdrawal in the State of Washington.
(Id.)  The unauthorized transactions totaled $5,083.75.  (Id.)  At the time of the
unauthorized transactions, he was over 1,200 miles away in San Diego, CA, where he
resides.  (Id.)
He immediately went to a BANA branch but the teller informed him that the
branch could not help him and instructed him to call the number on the back of his EDD
debit card.  (Id. ¶ 5.)  That same day, he called the number on the back of his card to
report the unauthorized transactions and to seek reimbursement of the money that had
been taken out of his account.  (Id. ¶ 6.)  After spending more than three hours on hold,
he was disconnected before he was able to get through to the claims department.  (Id.)
The next morning, on October 29, 2020, he woke up at 5:00 am hoping to speak
with a BANA representative.  (Id. ¶ 7.)  After holding, he was connected with a
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representative in the claims department and spent about an hour on the phone going
through each unauthorized transaction and explaining why each was not authorized.  (Id.)
On October 30, 2020, just one business day after he reported the unauthorized
transaction claim, BANA mailed a letter informing him that it had closed his claim and
would not be reimbursing him for the $5,083.75 taken from his account.  (Id. ¶ 8.)  The
letter stated: “Your claim has been closed because we believe the account or the claim
have been the subject of fraud or suspicious activity.”  (Id.)  Over the next three
weekends, he made several attempts to contact BANA’s customer service, including
waiting on hold for three or four hours before being disconnected at the end of BANA’s
business hours.  (Id. ¶ 9.)  On November 9, 2020, he again woke up before dawn and was
able to connect with the claims department and request that his claim be reconsidered.
(Id.)  The BANA representative told him that baseless denials were a known issue, that
many people were having the same problems, and that no human had ever looked at his
claim.  (Id.)  He later learned that his claim had been denied based on the Claim Fraud
Filter.  (Id.)
Between October 27, 2020 and November 15, 2020, Willrich called BANA for
assistance on at least six separate occasions, sometimes making multiple calls in a day,
typically waiting on hold for at least an hour each time he called and being shuffled
between multiple agents in one day.  (Id. ¶ 10.)   In total, he estimates he spent
approximately three hours on the phone with BANA’s representatives trying to resolve
these issues, and at least eight hours on hold during this period.  (Id.)
Around January 12, 2021, 75 days after he submitted his unauthorized transactions
claim, he learned BANA finally credited his EDD debit card account the $5,083.75 that
had been stolen from him the previous October.  (Id. ¶ 11.)
9.
Alex Yuan
Alex Yuan (“Yuan”) began receiving EDD unemployment insurance benefits
through a BANA EDD debit card with a magnetic stripe that was linked to a BANA EDD
debit card account in May 2020.  (Dkt. No. 324-16, Chan Decl., Ex. 13, Yuan Decl. ¶¶ 2,
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3.)  In September 2020, he discovered that two separate unauthorized ATM withdrawals
of $900 each, totaling $1,800, were made from his EDD debit card.  (Id. ¶ 4.)  One
withdrawal was made on August 24, 2020, in Los Angeles, CA, and another on
September 7, 2020, in Pasadena, CA but at the time of the unauthorized ATM
withdrawals, he was more than 300 miles away from Los Angeles and Pasadena in San
Jose, CA.  (Id.)
On September 10, 2020, he called BANA’s customer service number to report
these unauthorized ATM withdrawals and to ask BANA to credit his EDD debit card
account for the $1,800 that was stolen.  (Id. ¶ 5.)  After spending more than one hour on
hold, he spoke with a BANA representative in the claims department and identified the
two unauthorized ATM withdrawals totaling $1,800, informed the BANA representative
that he had never used an ATM anywhere near the ones used for the withdrawals, and
confirmed that he had his debit card in his possession at all relevant times, and had not
authorized anyone else to make the withdrawals.  (Id. ¶ 6.)  The BANA representative
confirmed that his claim had been filed and would be investigated.  (Id.)
On September 13, 2020, BANA provisionally credited his account $1,800 but on
September 28, 2020, BANA froze his account and it remained frozen until October 4,
2020.  (Id. ¶¶ 7, 8.)   In a letter dated October 3, 2020, BANA informed Yuan that it had
closed his claim and would be rescinding the $1,800 credit.  (Id. ¶ 9.)  The letter provided
no explanation of BANA’s findings stating only: “Your claim has been closed because
we believe the account or the claim have been the subject of fraud or suspicious activity”
and that the credit applied to his account “has been or will be debited from [his] account.”
(Id.)  Beginning on October 4, 2020, he called BANA on multiple occasions seeking to
have the $1,800 unauthorized transaction claim reconsidered.  (Id. ¶ 10.)  During these
calls, he experienced long wait times, dropped calls, and elusive responses concerning
why the credit had been rescinded from his account, why his claim was denied, and when
and how the matter would be resolved.  (Id.)
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After he made multiple calls to BANA seeking reconsideration of his claim,
BANA sent a letter dated November 9, 2020, stating that BANA had “completed an
additional review” of his claim and, “[a]s a result of [BANA’s] research” had credited
him the $1,800 that had been stolen from him.  Yuan received this credit approximately
60 days after he submitted his unauthorized transaction claim to BANA and 36 days after
BANA rescinded the $1,800 credit.  (Id. ¶ 11.)
Between September 10, 2020 and November 15, 2020, he called BANA on at least
seven separate occasions, sometimes making multiple calls and getting shuffled between
multiple agents on the same day.  (Id. ¶ 12.)  He waited on hold for at least an hour each
time he called trying to resolve these issues.  (Id.)
On or about October 26, 2020, Yuan experienced another $900 unauthorized ATM
withdrawal from his EDD debit card account that occurred in North Hills, CA.  (Id. ¶ 13.)
Around November 11, 2020, he called BANA’s customer service to inquire about the
 $1,800 unauthorized transaction claim and also whether he could amend that claim to
add a claim regarding the $900 unauthorized ATM withdrawal or whether he had to make
a new claim for the $900 unauthorized transaction that occurred on October 26, 2020.
(Id. ¶ 14.)  During this call, he learned that BANA had recently reimbursed the $1800
claim and so he was given a new claim number for the October 26, 2020 unauthorized
transaction of $900.  (Id. ¶ 15.)
On November 18, 2020, he again called BANA’s customer service to follow up on
the $900 unauthorized transaction claim and to ask BANA to credit his EDD debit card
account for the $900 that was stolen.  (Id. ¶ 16.)  After waiting on hold, he finally spoke
with a BANA representative and identified the unauthorized ATM withdrawal totaling
$900 and confirmed that he had the card in his possession at all relevant times and did not
authorize anyone to make the withdrawals.  (Id. ¶ 17.)
In a letter dated November 19, 2020, one business day after he followed up on his
claim disputing the unauthorized withdrawal, BANA had closed his claim and indicated
it would not be reimbursing the $900 taken from his account.  (Id. ¶ 18.)  The letter
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provided no explanation of BANA’s investigation or findings, stating only: “Your claim
has been closed because we believe the account or the claim have been the subject of
fraud or suspicious activity.”  (Id.)
In December 2020, he received a letter from BANA notifying him that it
had again frozen his account due to fraud.  (Id. ¶ 19.)  Through this litigation, Yuan
learned that BANA froze his account on December 17, 2020 and the freeze remained in
effect for 28 days until January 15, 2021.  (Id.)  During that period, he could not receive
or access any new periodic EDD benefits payments that he would have received and
would have been able to use if BANA had not frozen his account.  (Id.)
After he made multiple calls to BANA seeking reconsideration of the
$900 unauthorized transaction claim of October 26, 2020, he received a letter from
BANA dated January 13, 2021, stating that the BANA had once again “completed an
additional review” of his claim and, based on that research, had credited him the $900
that had been taken from him the previous October.  (Id. ¶ 20.)  He received this credit 56
days after he submitted his unauthorized transaction claim to BANA.  (Id.)
Procedural Background
On January 14, 2021, former Class Plaintiff Jennifer Yick commenced a purported
class action in the United States District Court for the Northern District of California
against BANA.  (See Yick v. Bank of Am., Case No. 21cv376-VC, Dkt. No. 1, Compl.
(N.D. Cal. 2021).)  Eight additional class actions were subsequently filed and
consolidated with Yick on March 29, 2021.  (Id., Dkt. No. 60.)  On April 1, 2021,
Plaintiffs in the Yick consolidated class action sought a preliminary injunction enjoining
BANA from automatically denying fraud claims based on its faulty “Claim Fraud Filter”
and freezing or blocking claimants’ accounts without investigation.  (Id., Dkt. No. 64.)
The Yick court granted a preliminary injunction on May 17, 2021, and provisionally
certified a class of all EDD Cardholders who called BANA to report unauthorized
charges.  (Dkt. No. 324-73, Chan Decl., Ex. 73.)  On June 2, 2021, following negotiations
between the parties and with the assistance of the magistrate judge, the Yick court entered
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a preliminary injunction which: (1) barred BANA from considering the results of its CFF
when investigating claims or resolving unauthorized transaction error claims; (2)
prohibited BANA from denying claims or denying provisional or permanent credits
without an investigation and providing the claimant with a written explanation; (3)
prohibited BANA from freezing any account based on the results of the CFF; (4) required
BANA to reopen any claims previously denied based on the results of the CFF and that it
had not previously paid or previously reopened and investigated; and (5) required BANA
to establish dedicated toll free numbers for Class Members to be available 24 hours per
day, 7 days a week for those seeking assistance with claims intake and frozen accounts.
(Dkt. No. 324-74, Chan Decl., Ex. 71.)  Around that same time, a number of individual
plaintiffs initiated actions against BANA for injuries stemming from the same alleged
conduct.  The injunction was eventually dissolved as of June 1, 2024 when EDD
terminated its contract with BANA.  (Dkt. No. 255.)
In July 2022, the Consumer Financial Protection Bureau (“CFPB”) and the Office
of the Comptroller of the Currency (“OCC”) separately entered into Consent Orders with
BANA regarding findings of violations of federal law related to its use of the CFF.  (Dkt.
No. 324-75, Chan Decl., Ex. 72; Dkt. No. 324-76, Chan Decl. Ex. 73.)  In response to the
Consent Orders, BANA created the Unemployment Insurance Prepaid Card Program
Remediation Plan (“Remediation Plan”) along with its Addendum and Second
Addendum
.  (Dkt. No. 368-29, Chan Decl.,
Ex. 147 (UNDER SEAL).)
Under the Remediation Plan,
.  (Dkt. No. 368-29, Chan Decl., Ex. 147 § III(B) at 6 & n.16
(UNDER SEAL).)
.  (Id. at 7 (UNDER
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SEAL).)  As of October 23, 2024, the review process was still ongoing.  (Dkt. No. 350-8,
Brys Decl., Ex. 7, Martin Decl. ¶ 15.)
On June 4, 2021, the Judicial Panel on Multidistrict Litigation (“JPML”)
transferred the Yick class action and individually filed actions to this Court for
consolidated pretrial proceedings.  (Dkt. No. 1.)  Pursuant to the Court’s order following
a case management conference, (Dkt. No. 48), Plaintiffs filed a Master Consolidated
Complaint (“MCC”) on August 17, 2021.  (Dkt. No. 72.)  On May 25, 2023, the Court
granted in part and denied in part Defendant’s motion to dismiss the MCC with leave to
amend.  (Dkt. No. 126.)  On June 13, 2023, Plaintiffs filed a First Amended Master
Consolidated Complaint (“FAMCC”) against BANA.  (Dkt. No. 136.)
Subsequently, on July 11, 2023, Defendant filed a motion to dismiss certain claims
of the FAMCC.  (Dkt. Nos. 146, 171, 175.)  On August 7, 2023, Plaintiffs filed a motion
for reconsideration of the UCL claim that was dismissed with prejudice.  (Dkt. Nos. 151,
158, 161.)
On April 8, 2024, the case was transferred to the undersigned judge.  (Dkt. No.
261.)   On June 25, 2024, the Court granted in part and denied in part Defendant’s motion
to dismiss the FAMCC and granted Plaintiffs’ motion for reconsideration with leave to
amend.  (Dkt. No. 297.)
On July 16, 2024, Plaintiffs filed a Second Amended Master Consolidated
Complaint (“SAMCC”).  (Dkt. No. 304.)  After the hearing on class certification, on
January 24, 2025, Class Plaintiffs file the operative Third Amended Master Consolidated
Complaint, (“TAMCC”).8  (Dkt. No. 406.)  The TAMCC alleges the following remaining
claims:
8 At the hearing, Class Plaintiffs sought leave to amend when the Court questioned whether Plaintiffs
could seek class certification on a due process claim for the Credit Rescission Class when it was not
raised in the SAMCC and whether Plaintiffs could raise the breach of fiduciary claim for the Customer
Service Class when it was not alleged in the SAMCC.  (Dkt. No. 422 at 5-6.)  Plaintiffs filed the
TAMCC to add the Credit Rescission Class to the due process claims and to add the Customer Service
Class to the breach of fiduciary duty claim.  Defendant did not oppose.  (Id. at 6.)
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1.
First Claim -violation of the Electronic Funds Transfer Act (“EFTA”),
15 U.S.C. §§ 1963 et seq., and Regulation E ,12 C.F.R. §§ 1005.1 et
seq.;
2.
Second Claim - violation of the California Consumer Privacy Act
(“CCPA”), Cal. Civ. Code §§ 1798.100 et seq.;
3.
Fourth Claim - violation of California’s Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code §§ 17200 et seq.;
4.
Fifth Claim - Negligence and Negligence Per Se;
5.
Sixth Claim - Negligent Hiring, Supervision, and Retention;
6.
Seventh Claim - Breach of Contract;
7.
Ninth Claim - Breach of the Implied Covenant of Good Faith and Fair
Dealing;
8.
Tenth Claim - Breach of Fiduciary Duty;
9.
Thirteenth Claim - violation of the Due Process Clause of the
Fourteenth Amendment of the United States Constitution; and
10.
Fourteenth Claim - violation of the Due Process Clause of the
California Constitution.
(Id.)  On February 7, 2025, Defendant filed an answer.  (Dkt. No. 414.)
On August 29, 2024, Plaintiffs filed the instant motion for class certification which
is fully briefed.9  (Dkt. Nos. 324, 349, 378.)
Class Plaintiffs seek to certify the following five classes:
1
Claim Denial Class: All Bank of America EDD cardholders who
notified the Bank that an unauthorized transaction had occurred on their
Bank of America EDD debit card account (“Claim”) at an automated teller
machine (“ATM”), and whose Claim the Bank denied or closed at any time
from September 28, 2020 through June 8, 2021, based solely on Indicator 1
of the Bank’s Claim Fraud Filter (“CFF”).
2
Credit Rescission Class: All Bank of America EDD cardholders who
received permanent credit from the Bank in connection with their Claim,
which credit the Bank rescinded at any time from September 28, 2020
through June 8, 2021, based solely on Indicator 1 of the Bank’s CFF.
3
Account Freeze Class: All Bank of America EDD cardholders whose
EDD debit card account (“Account”) the Bank froze at any time from
September 28, 2020 through March 17, 2021, based solely on Indicator 1 of
9 The filing of the TAMCC does not impact the Court’s ruling on the motion for class certification as the
parties briefed the two issues that were absent from the SAMCC.
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the Bank’s CFF, and whose Account the Bank (i) subsequently unfroze, or
(ii) subsequently converted from frozen to blocked status on or after March
18, 2021 and then unblocked.
4
Customer Service Class: All members of the Claim Denial class
and/or the Credit Rescission class who telephoned the Bank’s customer
service telephone number for its EDD cardholders at any time from
September 13, 2020 through November 21, 2020, and whose telephone call
was routed to the Bank’s Claims call center.
5
EMV Chip Class: All members of the Claim Denial class and/or
Credit Rescission class whose EDD debit card did not include an EMV chip
prior to June 9, 2021.
Excluded from each class is any person whom the Bank has determined,
pursuant to its Remediation Plan with the United States Consumer Financial
Protection Bureau (CFPB) and Office of the Comptroller of the Currency
(OCC), “(i) has been disqualified by the [S]tate [of California] from
Program10 eligibility; (ii) has previously engaged in fraudulent Program
conduct, such as submission of fraudulent claims or other abuses of the
claims process; or (iii) has had their card frozen due to legal order processes,
as a result of Internal/Vendor fraud investigations, or by Global Financial
Crimes Compliance.”  Also excluded from each class is any person whose
Claim or Account the Bank closed, in whole or in part, because the State of
California requested the Bank to close that person’s Claim or Account.
(Dkt. No. 386-1.)
Specifically, Plaintiffs seek certification of the designated classes based on their
claims for relief pursuant to:
(1) the Electronic Fund Transfers Act (“EFTA”), 15 U.S.C. §§1693(a)-(r), and its
implementing Regulation E (“Reg E”), 12 C.F.R. pt. 1005 (Claim Denial and
Credit Rescission Classes);
(2) the due process clauses of the United States Constitution, amend. XIV (42
U.S.C. § 1983), and California Constitution, art. I § 7(a) (Credit Rescission
and Account Freeze Classes);
10 Program refers to Defendant’s “Unemployment Benefits Prepaid Card Program.”  (Dkt. No. 367-6,
Chan Decl., Ex. 74 at 3 (UNDER SEAL).)
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(3) breach of fiduciary duty (Claim Denial, Credit Rescission, and Account
Freeze, and EMV Chip Classes);11
(4) breach of the implied covenant of good faith and fair dealing under the Bank’s
account agreement with EDD cardholders (Claim Denial, Credit Rescission,
Account Freeze, and Customer Service Classes);
(5) California Consumer Privacy Act (“CCPA”), Cal. Civ. Code §§ 1798.100-.199
(EMV Chip Class);
(6) negligence and negligence per se (all Classes); and
(7) the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§17200-17210.
(Claim Denial, Credit Rescission, and Account Freeze Classes).
Plaintiffs also seek the appointment of Plaintiffs Koole, McClure, Moon,
Oosthuizen, Rivera, Willrich, and Yuan as class representatives for the Claim Denial
class; the appointment of Plaintiffs Chong and Moore as class representatives for the
Credit Rescission class; the appointment of Plaintiffs Chong, Koole, McClure, Moon,
Moore, Rivera, and Yuan as class representatives for the Account Freeze class; the
appointment of Plaintiffs Chong, Moon, Moore, Oosthuizen, Willrich, and Yuan as class
representatives for the Customer Service class; and the appointment of Plaintiffs Chong,
Koole, McClure, Moon, Moore, Oosthuizen, Rivera, Willrich, and Yuan as class
representatives for the EMV Chip class.  Finally, they seek the appointment of Cotchett
Pitre & McCarthy LLP and Altshuler Berzon LLP to serve a co-lead Class Counsel.
/ / /
/ / /
/ / /
11 In an order filed on January 27, 2025, the Court noted that the breach of fiduciary duty claim as to the
Customer Service Class was not briefed in the motion for class certification and set a briefing schedule.
(Dkt. No. 408 at 2; Dkt. No. 423.)  Subsequently, on February 28, 2025, Class Plaintiffs notified the
Court that it will not seek to certify the breach of fiduciary duty claim as to the Customer Service Class.
(Dkt. No. 434.)
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Discussion
A.
Legal Standard on Class Certification
“The class action is an exception to the usual rule that litigation is conducted by
and on behalf of individual named parties only.  In order to justify a departure from that
rule, a class representative must be a part of the class and possess the same interest and
suffer the same injury as the class members.”  Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 348-49 (2011) (internal quotation marks and citations omitted).  A plaintiff seeking
class certification must affirmatively show the class meets the requirements of Federal
Rule of Civil Procedure (“Rule”) 23.  Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013) (citing Dukes, 564 U.S. at 350-51).  To obtain certification, a plaintiff bears the
burden of proving that the class meets all four requirements of Rule 23(a)--numerosity,
commonality, typicality, and adequacy.  Ellis v. Costco Wholesale Corp., 657 F.3d 970
979-80 (9th Cir. 2011).  If these prerequisites are met, the court must then decide whether
the class action is maintainable under Rule 23(b).  United Steel, Paper & Forestry,
Rubber, Mfg. Energy, Allied Indus. & Serv. Workers Int'l Union AFL–CIO, CLC v.
ConocoPhillips Co., 593 F.3d 802, 806 (9th Cir. 2010).  This case involves Rule
23(b)(3), which authorizes certification when “questions of law or fact common to class
members predominate over any questions affecting only individual class members,” and
“a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.”  Fed. R. Civ. P. 23(b)(3).  Plaintiffs must prove, by a
preponderance of the evidence, that the prerequisites of Rule 23 have been satisfied.
Olean, 31 F.4th at 665.  The Court exercises discretion in granting or denying a motion
for class certification.  Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).
The Court is required to perform a “rigorous analysis,” which may require it “to
probe behind the pleadings before coming to rest on the certification question.”  Dukes,
564 U.S. at 350-51.  “[T]he merits of the class members’ substantive claims are often
highly relevant when determining whether to certify a class.  More importantly, it is not
correct to say a district court may consider the merits to the extent that they overlap with
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class certification issues; rather, a district court must consider the merits if they overlap
with Rule 23(a) requirements.”  Ellis, 657 F.3d at 981.  Nonetheless, the district court
does not conduct a mini-trial to determine if the class “could actually prevail on the
merits of their claims.”  Id. at 983 n.8; United Steel, 593 F.3d at 808 (citation omitted)
(court may inquire into substance of case to apply the Rule 23 factors, however, “[t]he
court may not go so far . . . as to judge the validity of these claims.”).
B.
Federal Rule of Civil Procedure 23(a)
1.
Numerosity
Plaintiffs maintain that the numerosity factor is easily met because there are
significantly more than forty members.  (Dkt. No. 324-1 at 28.)  Defendant does not
challenge that numerosity has been satisfied.  (See Dkt. No. 349.)
To establish numerosity, a plaintiff must show that the represented class is “so
numerous that joinder of all members is impracticable.”  Fed. R. Civ. P. 23(a)(1); Bates v.
United Parcel Serv., 204 F.R.D. 440, 444 (N.D. Cal. 2001).  A court may reasonably
infer based on the facts of each particular case to determine if numerosity is satisfied.
Ikonen v. Hartz Mtn. Corp., 122 F.R.D. 258, 262 (S.D. Cal. 1988).  “As a general rule,
classes of 20 are too small, classes of 20–40 may or may not be big enough depending on
the circumstances of each case, and classes of 40 or more are numerous enough.”  Id.
Because the proposed claim members, in each proposed class, are in the thousands,
the Court finds that numerosity has been satisfied.
2.
Commonality
Because the requirements of Rule 23(a)(2)’s “commonality” overlaps with the
predominance requirements of Rule 23(b)(3) requiring questions common to the class
must predominate over individualized ones, the Court addresses commonality in its
discussion of Rule 23(b)(3) below.  See Olean, 31 F.4th at 664 (“The requirements of
Rule 23(b)(3) overlap with the requirements of Rule 23(a) . . . Therefore, courts must
consider cases examining both subsections [Rule 23(a) and Rule 23(b)(3)] in performing
a Rule 23(b)(3) analysis[ ]”); see Just Film, Inc. v. Buono, 847 F.3d 1108, 1120 (9th Cir.
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2017) (addressing Rule 23(a) and Rule 23(b)(3) requirements concurrently); see also
Raines v. U.S. Healthworks Med. Grp., Case No.: 19-cv-1539-DMS-DEB, 2024 WL
3850812, at *5 (S.D. Cal. Aug. 16, 2024) (addressing commonality with predominance).
3.
Typicality
Under typicality, the Court must determine whether the claims or defenses of the
representative parties are typical of the claims or defenses of the class.  Fed. R. Civ. P.
23(a)(3).  Typicality focuses on ensuring that the interests of the class representatives
“aligns with the interests of the class.”  Just Film, Inc., 847 F.3d at 1116 (quoting Hanon
v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)).  “The requirement is
permissive, such that representative claims are typical if they are reasonably coextensive
with those of absent class members; they need not be substantially identical.”  Id.
(citation and internal quotation marks omitted).  “Measures of typicality include ‘whether
other members have the same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other class members have been
injured by the same course of conduct.’”  Torres v. Mercer Canyons Inc., 835 F.3d 1125,
1141 (9th Cir. 2016) (quoting Hanon, 976 F.2d at 508).  Recognizing that “class
certification is inappropriate where a putative class representative is subject to unique
defenses which threaten to become the focus of the litigation”, the Ninth Circuit held that
“class certification should not be granted if ‘there is a danger that absent class members
will suffer if their representative is preoccupied with defenses unique to it.’”  Hanon, 976
F.2d at 508 (citation omitted).
Class Plaintiffs argue that they are typical of those class members they seek to
represent because their claims and injuries all arise from BANA’s Claim Denial, Credit
Rescission and Account Freeze policies applied to all EDD cardholders; BANA’s
intentional and uniform practice of understaffing its Claims call center; and BANA’s
failure to include industry-standard EMV chips on its EDD debit cards.  (Dkt. No. 324-1
at 30-31.)  Defendant contends the class includes putative class members who are subject
to defenses that they do not share with the nine representative Class Plaintiffs.  (Dkt. No.
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349 at 50-51.)  In reply, Plaintiffs maintain that typicality focuses on whether the named
plaintiff will be subject to defenses unique to it and not the reverse.  (Dkt. No. 378 at 11
n.2.)
The Court agrees with Class Plaintiffs that the question on typicality is whether
they will be subject to defenses that are unique to them which will threaten to become the
focus of the litigation, and not, as BANA argues, whether the putative class members
have defenses unique to them.12  See Hanon, 976 F.2d at 508 (“Typicality refers to the
nature of the claim or defense of the class representative.”); Nitsch v. Dreamworks
Animation SKG Inc., 315 F.R.D. 270, 284 (N.D. Cal. 2016) (“Thus, the fact that
Defendants may have affirmative defenses against some absent class members does not
affect the Court's typicality analysis.”); Barnes v. AT&T Pension Benefit Plan-
Nonbargained Program, 270 F.R.D. 488, 494 (N.D. Cal. 2010) (“More generally,
defenses that may bar recovery for some members of the putative class, but that are not
applicable to the class representative do not render a class representative atypical under
Rule 23.”) (citing In re Live Concert Antitrust Litig., 247 F.R.D. 98, 117 (C.D. Cal. 2007)
(holding that unique defenses against some class members do not make a class
representative atypical) and Winkler v. DTE, Inc., 205 F.R.D. 235, 241-42 (D. Ariz.
2001) (holding that typicality requirement met even though the defendant argued “it ha[d]
valid defenses and counterclaims it may assert against some class members but not the
named representative”)).  Therefore, Defendant’s argument that putative class members
may have defenses unique to them is not relevant to the question of typicality.
BANA additionally contends that Class Plaintiffs are subject to unique defenses
because each Class Plaintiff will be subject to different damages depending on the facts
and absent class members may be harmed by relying on a Class Plaintiff who is not
12 BANA relies on In re Digital Music Antitrust Litig., 321 F.R.D. 64, 88 (S.D.N.Y. 2017) where it held
that typicality considers the unique defenses of the putative class members but without any legal
analysis.  (See Dkt. No. 349 at 51.)  In re Digital Music Antitrust Litig. is not in line with the Ninth
Circuit’s ruling in Hanon and the Court declines to adopt its conclusion.
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entitled to damages.  (Dkt. No. 349 at 52 (citing Williams v. Warner Music Grp., 884 Fed
App’x 284, 285 (9th Cir. 2021) (“Plaintiffs were atypical class members because they
apparently would not be entitled to damages.”).)  The Court again disagrees.  First, there
is no indication that any of the Class Plaintiffs would not be entitled to damages.
Moreover, typicality relates to the nature of the lead plaintiff's “claims and defenses,” not
to the amount of damages.  See Fed. R. Civ. P. 23(a)(3).  Differences related to Class
Plaintiffs’ potential damages and potential damages of the putative class members do not
defeat typicality as long as the alleged injury is common to the putative class members.
See Coppel v. SeaWorld Parks & Ent., 347 F.R.D. 338, 357 (S.D. Cal. 2024) (“Although
the losses attributable could differ from participant to participant, individual damages
should not defeat typicality.”) (quoting Kanawi v. Bechtel Corp., 254 F.R.D. 102, 110
(N.D. Cal. 2008)); Mendoza v. Zirkle Fruit Co., 222 F.R.D. 439, 446 (D. Wash. 2004)
(“The fact that damage claims will vary among [class members] does not defeat
typicality.”); Carlos v. Wal-Mart Assocs., Inc., Case No. 5:21-CV-00294-AB (KKx),
2022 WL 17885691, at *8 (C.D. Cal. Sept. 6, 2022) (typicality satisfied because the
alleged injury was common to plaintiff and the putative class members, and rejecting the
defendant’s argument that differences in the plaintiff’s and putative class members
potential damages defeat typicality).
As discussed below on commonality, Class Plaintiffs have claimed that they and
all putative class members were subject to and injured by BANA’s uniform practice and
policy of implementing CFF-1 when it automatically denied claims, rescinded permanent
credits and froze accounts.  Further, they and the putative class members were injured by
BANA’s practice of understaffing its Claims call center and failing to include industry-
standard EMV chips on all its EDD debit cards.  Thus, Plaintiffs have shown their claims
are typical of the claims and defenses of the putative class members.
4.
Adequacy
As to adequacy, Rule 23(a)(4) provides that class representatives must “fairly and
adequately protect the interests of the class.”  Fed. R. Civ. P. 23(a)(4).  In analyzing
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whether Rule 23(a)(4) has been met, the Court must ask two questions: “(1) do the named
plaintiffs and their counsel have any conflicts of interest with other class members and
(2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf
of the class?”  Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1031 (9th Cir.
2012) (quoting Hanlon, 150 F.3d at 1020).
Plaintiffs argue that they have shown their ability to litigate the case vigorously on
behalf of class members and have no interests adverse to the class.  (Dkt. No. 324-1 at
31.)  Further, they maintain that proposed Co-Lead Class Counsel satisfy the adequacy
requirement.  (Id.)  In response, BANA repeats the same argument raised on typicality
raising differences in defenses between the Class Plaintiffs and the putative class
members.13  (Dkt. No. 349 at 51.)
Contrary to BANA’s argument, “a named plaintiff is not rendered inadequate
merely because he or she is not subject to every affirmative defense that a defendant may
assert against particular absent class members.”  Nitsch, 315 F.R.D. at 285 (citing Barnes,
270 F.R.D. at 495 (holding that “the potential existence of [affirmative] defenses against
absent class members does not, standing alone, make [the named plaintiff] inadequate”);
see also Boyd v. Bank of Am. Corp., 300 F.R.D. 431, 439 (C.D. Cal. 2014) (noting that
“there is no authority for the proposition that an affirmative defense, which may affect
some members of the class, creates a conflict that otherwise defeats the adequacy of a
proposed class representative”) (quotation marks omitted).
In support of adequacy, Class Plaintiffs have declared that they do not have any
conflicts of interest with other class members and will prosecute the action vigorously on
behalf of the class.  (See Dkt. No. 324-8, Chan Decl., Ex. 5, Chong Decl. ¶¶ 16, 17; Dkt.
No. 324-9, Chan Decl., Ex. 6, Koole Decl. ¶¶ 10, 11; Dkt. No. 324-10, Chan Decl., Ex. 7,
13 BANA does not provide a separate, distinct argument on adequacy because typicality and adequacy
become a “single inquiry.”  (See Dkt. No. 349 at 51 (citing James v. Uber Tech. Inc., 338 F.R.D. 123,
133 (N.D. Cal. 2021)).
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McClure Decl. ¶¶ 13, 14; Dkt. No. 324-11, Chan Decl., Ex. 8, Moon Decl. ¶¶ 17, 18;
Dkt. No. 324-12, Chan Decl., Ex. 9, Moore Decl. ¶¶ 14, 15; Dkt. No. 324-13, Chan Decl.,
Ex. 10, Oosthuizen Decl. ¶¶ 12, 13; Dkt. No. 324-14, Chan Decl., Ex. 11, Rivera Decl. ¶¶
13, 14; Dkt. No. 324-15, Chan Decl., Ex. 12, Willrich Decl. ¶¶ 12, 13; Dkt. No. 324-16,
Chan Decl., Ex. 13, Yuan Decl. ¶¶ 22, 23.)  Defendant does not challenge any of these
Class Plaintiffs’ assertions.  Thus, the Court finds that Class Plaintiffs have demonstrated
they are adequate representatives.
As to adequacy of counsel, Rule 23(g)(4) requires that “[c]lass counsel must fairly
and adequately represent the interests of the class.”  Fed. R. Civ. P. 23(g)(4).  BANA
does not dispute the adequacy of proposed Co-Lead Class Counsel.  In the Yick
consolidated case, the district court appointed Cotchett Pitre & McCarthy (“CPM”) and
Altshuler Berzon LLP as interim co-lead counsel.  (Dkt. No. 324-161, Jt. Decl. ¶ 2.)
Once the JPML ordered that these cases be transferred to this district, on July 20, 2021,
the court appointed them as Interim Co-Lead Counsel in this case.  (Id.; see also Dkt. No.
48 at 2.)  Based on these prior designations as well as the joint declaration of counsel
providing support for CPM and Altshuler Berzon LLP to be co-lead class counsel, the
Court finds that the adequacy requirement is satisfied with respect to both counsel.
C.
Federal Rule of Civil Procedure 23(a)(2) and 23(b)(3)
The commonality prerequisite of Rule 23(a)(2) requires that plaintiffs show that
“there are questions of law or fact common to the class.”  Fed. R. Civ. P. 23(a)(2).
Commonality requires the plaintiff to demonstrate that the class members ‘have suffered
the same injury.’”  Dukes, 564 U.S. at 350.  “That common contention . . . must be of
such a nature that it is capable of classwide resolution – which means that determination
of its truth or falsity will resolve an issue that is central to the validity of each one of the
claims in one stroke.”  Id.  “‘What matters to class certification . . . is not the raising of
common ‘questions’ . . . but, rather the capacity of a classwide proceeding to generate
common answers apt to drive the resolution of the litigation.  Dissimilarities within the
proposed class are what have the potential to impede the generation of common
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answers.’”  Id.  (emphasis in original) (citation omitted).  “Therefore, to prove there is a
common question of law or fact that relates to a central issue [in this case], plaintiffs must
establish that the “essential elements of the cause of action . . . are capable of being
established through a common body of evidence, applicable to the whole class.”  Olean,
31 F.4th at 666 (internal quotation marks and citation omitted).  “Commonality mandates
there be a common question of law or fact among the class members ‘where the same
evidence will suffice for each member to make a prima facie showing [or] the issue is
susceptible to generalized, class-wide proof.’”  Small v. Allianz Life Ins. Co. of N. Amer.,
122 F.4th 1182, 1198 (9th Cir. 2024) (quoting Lara v. First Nat’l Ins. Co. of Am., 25
F.4th 1134 11134, 1138 (2022) (alteration in original) (internal quotation marks and
citation omitted)).
Once Plaintiffs show that there are “questions of law or fact common to class
members,” then they must prove, under Rule 23(b)(3), that “the questions of law or fact
common to class members predominate over any questions affecting only individual
members.”  Fed. R. Civ. P. 23(b)(3); see Olean, 31 F.4th at 664.  “The predominance
inquiry ‘asks whether the common, aggregation-enabling, issues in the case are more
prevalent or important than the non-common, aggregation-defeating, individual issues.’”
Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016) (citation omitted).  Rule
23(b)(3) requires the court to make a “rigorous assessment of the available evidence and
the method or methods by which plaintiffs propose to use the [class-wide] evidence to
prove the common question in one stroke.”  Olean, 31 F.4th at 666 (internal quotation
marks and citation omitted).
A key concern of the Rule 23(b)(3) requirement is whether “adjudication of
common issues will help achieve judicial economy.”  Vinole v. Countrywide Home
Loans, Inc., 571 F.3d 935, 944 (9th Cir. 2009) (quoting Zinser v Accufix Research Inst.,
253 F.3d 1180, 1189 (9th Cir. 2001)).  The predominance inquiry focuses on whether the
proposed class is “sufficiently cohesive to warrant adjudication by representation.”
Amchem, 521 U.S. at 623 (citation omitted).
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When “one or more of the central issues in the action are common to the class and
can be said to predominate, the action may be considered proper under Rule 23(b)(3)
even though other important matters will have to be tried separately, such as damages or
some affirmative defenses peculiar to some individual class members.”  Tyson Foods,
Inc., 577 U.S. at 453 (citation omitted).  In short, “Rule 23(a)(2) asks whether there are
issues common to the class, and Rule 23(b)(3) asks whether these common questions
predominate.” Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 957 (9th Cir. 2013).
“By contrast, an individual question is one where members of a proposed class will need
to present evidence that varies from member to member.”  Olean, 31 F.4th at 663 (citing
Tyson Foods, Inc., 577 U.S. at 453).
Ultimately, Plaintiffs must prove by a preponderance of evidence that common
questions predominate over questions affecting only individual members, and that the
common questions relate to “a central issue in the plaintiffs’ claim.”  Olean, 31 F.4th at
665. Therefore, “[c]onsidering whether ‘questions of law or fact common to class
members predominate’ begins, of course, with the elements of the underlying cause of
action.”  Id. at 665 (quoting Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804,
809 (2011)).
1.
EFTA (Claim Denial and Credit Rescission Classes)
As discussed briefly above, the EFTA is a federal consumer protection law
“establishing the rights, liabilities, and responsibilities of participants in electronic fund . .
. transfer systems.”  15 U.S.C. § 1693(b).  Congress enacted the EFTA due to the
increasing use of electronic banking transactions and recognized these transactions as
“much more vulnerable to fraud, embezzlement, and unauthorized use than the traditional
payment method.”  Bank of Am. v. City and Cnty. of San Francisco, 309 F.3d 551, 564
(9th Cir. 2002) (quoting H.R. Rep. No. 95-1315, at 2 (1978)).  Reg E implements the
EFTA.  12 C.F.R. § 205.1.  An “electronic fund transfer” is “any transfer of funds . . .
initiated through an electronic terminal, telephonic instrument, or computer or magnetic
tape so as to order, instruct, or authorize a financial institution to debit or credit an
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account.”  15 U.S.C. § 1693a(7).  To achieve its purpose of providing for individual
consumer rights, the EFTA grants consumers a private cause of action against “any
person who fails to comply with any provision” of the EFTA.  Id. § 1693m.
Among their many provisions, the EFTA and Reg E require financial institutions to
timely investigate and resolve “errors” on electronic fund transfers.  15 U.S.C. § 1693f;
12 C.F.R. § 1005.11.  In order to invoke the protections of the EFTA and Reg E, the
consumer must notify the bank, orally or in writing, of any “errors” concerning an
electronic fund transfer within 60 days of receipt of a bank statement or other document
detailing the alleged erroneous electronic fund transfer.  15 U.S.C. § 1693f(a); 12 C.F.R.
§ 1005.11.  Once the bank is properly notified, it must “investigate the alleged error,
determine whether an error has occurred, and report or mail the results of such
investigation and determination to the consumer within ten business days.”  15 U.S.C. §
1693f(a).  However, if the institution cannot complete the investigation within 10 days as
required under §§ 1693f(a) and (b), it may “provisionally recredit” the consumer’s
account within ten business days of receiving notice of an error and complete its
investigation within 45 days.  15 U.S.C. § 1693f(c).  If a provisional credit is issued, the
consumer has full use of the funds during the pendency of the investigation.  Id.
If the financial institution discovers that an error occurred, it must promptly, no
later than one business day after the discovery, correct the error, and must include
interest, if applicable.  15 U.S.C. § 1693f(b).  If the financial institution concludes after
its investigation that an error did not occur, it shall deliver or mail its explanation of
findings to the consumer within three business days after the conclusion of the
investigation.  15 U.S.C. § 1693f(d).  “[T]he burden of proof is upon the financial
institution to show that the electronic fund transfer was authorized or, if the electronic
fund transfer was unauthorized, then the burden of proof is upon the financial institution
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to establish that the conditions of liability set forth in subsection (a)14 have been met.”  15
U.S.C. § 1693g(b).
If a bank fails to comply with any provisions of the statute, it is liable for damages.
15 U.S.C. §§ 1693f(e); 1693m(a).  Additionally, a consumer is entitled to treble damages
if “the court finds that-- (1) the financial institution did not provisionally recredit a
consumer’s account within the ten-day period . . . and the financial institution (A) did not
make a good faith investigation of the alleged error, or (B) did not have a reasonable
basis for believing that the consumer's account was not in error.  15 U.S.C. § 1693f(e)(1).
Treble damages are also warranted when “the financial institution knowingly and
willfully concluded that the consumer's account was not in error when such conclusion
could not reasonably have been drawn from the evidence available to the financial
institution at the time of its investigation.”  15 U.S.C. § 1693f(e)(2).
Reg E provides that “a financial institution’s review of its own records regarding
an alleged error” satisfies § 1693f's investigation requirement.  See 12 C.F.R. §
1005.11(c)(4); see Green v. Capitol One, N.A., 557 F. Supp. 3d 441, 451 (S.D.N.Y. 2021)
14 Subsection (a) of 15 U.S.C. § 1693g provides,
A consumer shall be liable for any unauthorized electronic fund transfer involving the
account of such consumer only if the card or other means of access utilized for such
transfer was an accepted card or other mean[s] of access and if the issuer of such card,
code, or other means of access has provided a means whereby the user of such card, code,
or other means of access can be identified as the person authorized to use it, such as by
signature, photograph, or fingerprint or by electronic or mechanical confirmation. In no
event, however, shall a consumer's liability for an unauthorized transfer exceed the lesser
of--
(1) $50; or
(2) the amount of money or value of property or services obtained in such unauthorized
electronic fund transfer prior to the time the financial institution is notified of, or
otherwise becomes aware of, circumstances which lead to the reasonable belief that an
unauthorized electronic fund transfer involving the consumer's account has been or may
be effected. Notice under this paragraph is sufficient when such steps have been taken as
may be reasonably required in the ordinary course of business to provide the financial
institution with the pertinent information, whether or not any particular officer, employee,
or agent of the financial institution does in fact receive such information.
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(“[W]hen read in conjunction with the implementing regulations and Official
Interpretation, § 1693f requires that any investigation under the statute include a
reasonable review of the financial institution's own records.”).
a.
Commonality
Class Plaintiffs seek to certify the Claim Denial and Credit Rescission Classes
alleging BANA violated the EFTA and Reg E.  (Dkt. No. 324-1 at 32-35.)  Because
BANA applied the same uniform policy, CFF-1, to all EDD cardholders, Plaintiffs claim
that common issues include “(1) whether the Bank had a policy of summarily denying
cardholders’ unauthorized transaction claims based solely on CFF-1; (2) whether the
Bank automatically rescinded previously paid permanent credits based solely on the
results of CFF-1; (3) whether the Bank’s automated claim denial procedures violated
EFTA’s ‘investigation’ requirement, 15 U.S.C. §1693f; (4) whether the Bank’s use of
CFF-1 to summarily deny claims violated its EFTA obligation to pay provisional credit,
id. §1693f(e)(1); (5) whether, by using CFF-1 to automatically deny claims and rescind
permanent credits, the Bank ‘did not make a good faith investigation of the alleged error’
or ‘knowingly and willfully concluded that the consumer’s account was not in error when
such conclusion could not reasonably have been drawn from the evidence available to the
financial institution at the time,’ id. §1693f(e); and (6) whether the form letters the Bank
sent every cardholder whose claim it auto-denied or auto-rescinded under CFF-1 failed to
provide an ‘explanation of its [investigation] findings,’ id. § 1693f(d).”  (Id. at 28-29.)
Plaintiffs argue that common evidence, including BANA’s own documents, will confirm
the existence and implementation of the Claim Denial and Claim Rescission policies.
(Id. at 33-35.)
BANA does not challenge the common questions raised by Plaintiffs that it
uniformly denied all cardholders’ unauthorized transactions claims based on CFF-1, it
uniformly rescinded all cardholders’ permanent credits based on use of the CFF-1,
uniformly provided all putative class members the same letter without an explanation of
its findings, and that these actions may be subject to treble damages under the EFTA.
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Instead, BANA responds that Plaintiffs omits disparate questions concerning elements to
prove an EFTA violation.15  (Dkt. No. 349 at 26-35.)
First, BANA argues that Plaintiffs must demonstrate that their accounts were
“established for personal, family, or household purposes,” not criminal purposes and this
issue cannot be common with every class member because it is a fact-driven one.  (Dkt.
No. 349 at 27 (citing 12 C.F.R. § 1005.2(b)(1).16)  In reply, Plaintiffs argue that their
accounts are not subject to 12 C.F.R. § 1005.2(b)(1) as BANA claims; rather their
accounts are prepaid accounts or “government benefit accounts” subject to 12 C.F.R. §
1005.2(b)(3)(i)(B)17 which is defined as “an account established by a government agency
for distributing government benefits to a consumer electronically, such as through
automated teller machines or point-of-sale terminals . . . .”  12 C.F.R. § 1005.15(a)(2).
At the hearing, BANA, relying on its statutory construction, argued that
“government benefit accounts” fall under the definition of an “account” requiring a
showing that it was established primarily for person, family or household purposes.  The
Court disagrees.
Under the definition section of Reg E, subsection (b) defines an “account.”  12
C.F.R. § 1005.2(b).  Under subsection (b), there are three distinct paragraphs defining
what an account is or is not.  12 C.F.R. §§ 1005.2(b)(1), (2), & (3).  The first paragraph
defines account as a “demand deposit (checking), savings, or other consumer asset
account . . . held . . . by a financial institution and established primarily for personal,
15 Some of Defendant’s arguments on commonality would have been more appropriately raised under
predominance because commonality focuses simply on identifying at least one common issue of fact or
law, Rule 23(a)(2); see Dukes, 564 U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2), even
a single common question will do.”) (internal quotation marks omitted), while predominance looks at
whether these common questions of law or fact predominate over individual ones, Rule 23(b)(3).  See
Olean, 31 F.4th at 663-66.
16  “’Account’ means a demand deposit (checking), savings, or other consumer asset account . . . held
directly or indirectly by a financial institution and established primarily for personal, family, or
household purposes.”  12 C.F.R. § 1005.2(b)(1).
17  “(3) The term [account] includes a prepaid account. (i) ‘Prepaid account’ means: . . . . (B) A
‘government benefit account,’ as defined in § 1005.15(a)(2).”  12 C.F.R. § 1005.2(b)(3)(i)(B)
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family, or household purposes.” 12 C.F.R. § 1005.2(b)(1).  Under the second paragraph,
an account is not one “held by a financial institution under a bona fide trust agreement.”
12 C.F.R. § 1005.2(b)(2).  Lastly, the third paragraph states that an “account” includes a
prepaid account.  12 C.F.R. §§ 1005.2(b)(3).  Prepaid account is then described in four
subparagraphs.  See 12 C.F.R. § 1005.2(b)(3)(A)-(D).  Subparagraph B includes a
“government benefit account” which is at issue in this case.  Contrary to Defendant’s
interpretation, the Court views each paragraph as distinct definitions of an “account.”
One account is opened by an individual for personal or family purposes while the
government benefit account is being established by a government entity to distribute
government benefits.  It is not logical to impose the requirement that all “accounts” be
established “primarily for personal, family, or household purposes” on government
benefit accounts.  Because EDD cardholders’ accounts are “government benefit
accounts”, the Court concludes there is no required showing that the accounts were
created for personal, family or household purposes; thus, BANA’s argument is
unavailing.
Second, BANA maintains that Plaintiffs must show that each challenged
transaction was in fact “unauthorized”, 15 U.S.C. § 1693a(12)(b)18 because class
members who filed fraudulent disputes cannot recover, relying on 15 U.S.C. §
1693g(a).19  (Dkt. No. 349 at 27-28.)  As such, it maintains that Plaintiffs cannot prove
18  “The term ‘unauthorized electronic fund transfer’ means an electronic fund transfer from a
consumer's account initiated by a person other than the consumer without actual authority to initiate
such transfer and from which the consumer receives no benefit, but the term does not include any
electronic fund transfer (A) initiated by a person other than the consumer who was furnished with the
card, code, or other means of access to such consumer's account by such consumer, unless the consumer
has notified the financial institution involved that transfers by such other person are no longer
authorized, (B) initiated with fraudulent intent by the consumer or any person acting in concert with the
consumer, or (C) which constitutes an error committed by a financial institution.”  15 U.S.C. §
1693a(12).
19 “A consumer shall be liable for any unauthorized electronic fund transfer involving the account of
such consumer only if the card or other means of access utilized for such transfer was an accepted card
or other mean[s] of access and if the issuer of such card, code, or other means of access has provided a
means whereby the user of such card, code, or other means of access can be identified as the person
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fraudulent intent with common evidence.  (Id. at 28.)  In reply, Plaintiffs assert that all
putative class members were subject to the same uniform policies and practices, and
BANA has only demonstrated a possibility of a de minimis number of fraudulent or
mistaken claims which does not defeat commonality.  (Dkt. No. 378 at 9-10.)
BANA misunderstands what showing Plaintiffs must present on a prima facie
violation of the EFTA in order to satisfy commonality.  See Small, 122 F.4th at 1198
(commonality looks at whether “the same evidence will suffice for each member to make
a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.”).
Contrary to BANA’s argument, the burden of proving each disputed transaction was
“unauthorized” is on BANA, not Plaintiffs, the EDD debit cardholders.  The EFTA
expressly states that “the burden of proof is upon the financial institution to show that the
electronic fund transfer was authorized or, if the electronic fund transfer was
unauthorized, then the burden of proof is upon the financial institution to establish that
the conditions of liability set forth in subsection (a) have been met.”  15 U.S.C. §
1693g(b).  BANA, not EDD cardholders, has to “to show that claims are unauthorized
before denying claims[.]”  Merisier v. Bank of Am., N.A., 688 F.3d 1203, 1210 (11th Cir.
2012).  In order to invoke the protections of the EFTA, Class Plaintiffs are only required
to timely notify BANA and provide information about the unauthorized transaction.  See
15 U.S.C. § 1693f(a).  Once that notice is provided, the bank must investigate within ten
business days, or within 45 days if the bank provisionally recredits the consumers’
account within ten business days.  See 15 U.S.C. §§ 1693f(a) & (c).  It is during this
investigation that the bank determines whether an unauthorized transaction occurred or
not.  See 15 U.S.C. §§ 1693f(b) & (d).  Therefore, contrary to BANA’s position, on a
authorized to use it, such as by signature, photograph, or fingerprint or by electronic or mechanical
confirmation.”  15 U.S.C. § 1693g(a).
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prima facie case, Plaintiffs do not have to demonstrate that their challenged transactions
were “unauthorized”20 or show each of the cardholders lacked fraudulent intent, and its
argument does not defeat commonality.
Third, BANA argues that individual questions exist about adequate notice because
discovery revealed multiple individual plaintiffs whose account records show untimely
notices despite their allegations in the consolidated complaint to the contrary.  (Dkt. No.
349 at 32.)  Therefore, according to BANA, determining which putative class members
satisfy the notice element is fact-intensive and dependent on each EDD cardholders’
online banking habits.  (Id. at 32-33.)  In reply, Plaintiffs argue that BANA has only
identified two members21 of the roughly 104,300 members in the Claim Denial Class who
did not provide adequate notice and has not identified any members of the Credit
Rescission class who submitted a claim outside the 60-day period.  (Dkt. No. 378 at 13.)
Further, they argue that BANA’s records can easily establish if the notice requirement
was met.  (Id.)
 In order to invoke the protections of the EFTA, a plaintiff must provide notice
within 60 days of receipt of a bank statement or other document detailing the alleged
erroneous electronic fund transfer.  See 12 C.F.R. § 1005.11(c).  Here, whether a
proposed class member has met the 60-day notice requirement can easily be determined
by a review of BANA’s records which include
.  (Dkt. No. 393-2, Chan
20BANA’s relies on Nelson and Almon to support its argument that Plaintiffs must demonstrate the
alleged transactions are unauthorized. The two cases are inapplicable because they did not address the
EFTA, a strict liability statute, but, rather, breach of contract claims.  See Nelson v. Conduent Bus.
Servs. LLC, Civil Action No. 1:18cv669-SDG, 2020 WL 5587450, at *6 (N.D. Ga. Sept. 18, 2020);
Almon v. Conduent Bus. Servs., LLC, SA-19-CV-1075-XR, 2022 WL 4545530, at *14-15 (W.D. Tex.
Sept. 28, 2022) (“Unlike the rights granted under the EFTA and Regulation E, however, Section 8 [of
the contract] does not afford a cardholder a procedural protection.”).
21
. (See Dkt. No. 393-2,
Chan Decl., Ex. 4, Regan Expert Report, Sch. I (UNDER SEAL).)
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Decl., Ex. 4, Regan Expert Report ¶¶ 32, 34 (UNDER SEAL); Dkt. No. 378-23, Chan
Suppl. Decl., Ex. 178 (Account History).)
Therefore, commonality is not defeated by individual questions on whether
putative class members provided timely notice to BANA because ascertaining members
of the Claim Denial Class can be addressed and easily determined at the claims stage.
See e.g., Briseno v. ConAgra Foods, Inc., 844 F.3d 1121, 1131-32 (9th Cir. 2017)
(defendants can “challenge the claims of absent class members if and when they file
claims for damages” explaining that parties have “long relied on ‘claim administrators,
various auditing processes, sampling for fraud detection, follow-up notices to explain the
claims process, and other techniques tailored by the parties and the court’ to validate
claims.”)
Lastly, BANA contends that the evidence concerning treble damages is not
common because it will depend on each individual account and as such, it will not
generate common answers.  (Dkt. No. 349 at 33-35.)  According to BANA, discovery has
already revealed individual Plaintiffs’ claims would likely fail based on evidence on their
individual accounts.  (Id. at 34.)  Plaintiffs reply that treble damages can be determined
on a classwide basis because it is not disputed that BANA failed to provide provisional
credit within the 10-day period as to all in the Class Denial class and it summarily
rescinded permanent credits as to all in the Credit Rescission class. (Dkt. No. 378 at 13-
14.)
Under the EFTA, a consumer is entitled to treble damages under two
circumstances.  First, a consumer is entitled to treble damages if “the court finds that-- (1)
the financial institution did not provisionally recredit a consumer’s account within the
ten-day period . . . and the financial institution (A) did not make a good faith
investigation of the alleged error, or (B) did not have a reasonable basis for believing that
the consumer's account was not in error.  15 U.S.C. § 1693f(e)(1).  Second, treble
damages are warranted when “the financial institution knowingly and willfully concluded
that the consumer's account was not in error when such conclusion could not reasonably
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have been drawn from the evidence available to the financial institution at the time of its
investigation.”  15 U.S.C. § 1693f(e)(2).
Here, Plaintiffs’ theory is that BANA failed to conduct any investigation and
summarily denied EDD cardholders’ unauthorized transaction claims and rescinded
permanent credits
; therefore, whether its failure to
investigate subjects it to treble damages is a classwide common question that
predominates.  BANA’s argument on treble damages is without merit.
Other courts have similarly found that a financial institution’s failure to comply
with the EFTA satisfies commonality.  See Almon, LLC, 2022 WL 4545530, at *11
(violations of EFTA and Reg E’s timeliness of investigation and credits satisfied
commonality that affects all or a large number of putative class members); Nelpia v. TD
Bank, 21cv1092, 2024 WL 3017141, at *15-16 (E.D.N.Y.  June 17, 2024) (commonality
met where the bank “maintains a policy and procedure of denying claims where the
accountholder approves the subject transactions or otherwise provides access to their
account” and the putative class members “were subject to the same unitary course of
conduct, which is sufficient to establish commonality.”).
In conclusion, because the EFTA claim relies on BANA’s uniform policy and
practice applicable to all EDD cardholders, commonality is easily satisfied and BANA
does not dispute that common evidence from its own records reveal this uniform practice
and policy.  See Beaver v. Omni Hotels Mgmt. Corp., Case No.:20cv191-AJB-DEB, 2023
WL 6120685, at *5 (S.D. Cal. Sept. 18, 2023) (“[w]here common questions stem from
the same source, or focus on the defendant’s conduct, commonality is generally satisfied)
(citing Just Film, Inc., 847 F.3d at 1124 n.3 (“These issues are appropriate for classwide
litigation because they focus on Leasing Defendants’ conduct.”)); Baghdasarian v.
Amazon.com, Inc., 258 F.R.D. 383, 388 (C.D. Cal. 2009) (finding commonality where
“the claims of all members of the class ‘stem from the same source’”); Haley v.
Medtronic, Inc., 169 F.R.D. 643, 650-51 (C.D. Cal. 1996); see e.g., Small, 122 F.4th at
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1198 (whether an insurance company violated a statute giving rise to the action can be a
common question to the class”).
b.
Predominance
 On predominance, BANA similarly argues that questions regarding whether the
alleged error claims were “authorized” will require individual inquiries whether the
transactions were honest mistakes or fraudulent.  (Dkt. No. 349 at 42.)  According to
BANA, “(i) criminals who defrauded the EDD with fraudulent benefits claims; (ii)
legitimate beneficiaries and criminals alike who defrauded BANA with fraudulent
transaction disputes; (iii) legitimate cardholders who disputed their own transactions by
honest mistake; and (iv) legitimate cardholders already compensated for their potential
injuries” will be in the class and subject to windfalls from double-dipping or quadruple
dipping.  (Id. at 43.)  Plaintiffs reply that BANA relies on speculation and fails to support
its argument with evidence.  (Dkt. No. 378 at 22.)  Further, they argue that to the extent
BANA has provided evidence, it has cited only a de minimis number of uninjured class
members which does not defeat predominance.  (Id.)
In Ruiz Torres, the Ninth Circuit rejected the argument that “a class cannot be
certified if it contains both injured and non-injured parties” explaining that a “well-
defined class may inevitably contain some individuals who have suffered no harm as a
result of a defendant’s unlawful conduct.”  Ruiz Torres v. Mercer Canyons Inc., 835 F.3d
1125, 1137 (9th Cir. 2016) (citing Newberg on Class Actions § 2:3) and Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 823 (7th Cir. 2012) (“[S]ome class
members' claims will fail on the merits if and when damages are decided, a fact generally
irrelevant to the district court’s decision on class certification.”)).  The Ruiz court
acknowledged “the possibility that an injurious course of conduct may sometimes fail to
cause injury to certain class members.”  Id. at 1136.
Similarly, here, all putative class members were subject to Defendant’s uniform
practice and policy of applying CFF-1 which automatically denied EDD cardholders’
error claims and rescinded permanent credits.  Therefore, the legal issue of whether these
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policies violate the EFTA predominates over a handful of identified class members who
were not injured.  See id. at 1134 (“more important questions apt to drive the resolution
of the litigation are given more weight in the predominance analysis over individualized
questions which are of considerably less significance to the claims of the class.”).  In
addition, identifying non-injured class members may be done at the claims and/or
damages phase.  See id. at 1137 (“that such fortuitous non-injury to a subset of class
members does not necessarily defeat certification of the entire class, particularly as the
district court is well situated to winnow out those non-injured members at the damages
phase of the litigation, or to refine the class definition.”).
The Court also disagrees with BANA’s assessment that individual questions,
concerning non-injured and/or fraudulent class members, will predominate over common
issues for several reasons.  First, the proposed Class definition already excludes any
person who “(i) has been disqualified by the [S]tate [of California] from Program22
eligibility; [or] (ii) has previously engaged in fraudulent Program conduct, such as
submission of fraudulent claims or other abuses of the claims process[.]”  (Dkt. No. 384-
1, Notice of Mot. at 3.)
Second, when the CFF was first implemented, if the EDD cardholders’ claims
were denied based on CFF-1, they could seek reconsideration of their denials.  (Dkt. No.
362, Chan Decl., Ex. 14, Daniels Depo. at 52:21-53:9; 234:13-21 (UNDER SEAL); (Dkt.
No. 366-24, Chan Decl., Ex. 49, BANA’s Resp. to Interrog. 28 at 9 (UNDER SEAL).)
.  (See Dkt No. 382-2, Brys Decl., Ex. 6, Letson Decl. ¶ 36
at 220 (UNDER SEAL); Dkt. No., 382-2, Brys Decl., Ex. 43 at 400 (UNDER SEAL).)
Third, under the PI order in Yick, dated June 2, 2021, BANA was required, within
10 days of the Order, to reopen any claims it closed or denied based solely on the results
22 Program means “the Bank’s Unemployment Benefits Prepaid Card Program.”  (Dkt. No. 367-6, Chan
Decl., Ex. 74 at 5 (UNDER SEAL).)
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of the CFF and that it had not previously paid or previously reopened and investigated,
and conduct an investigation within 10 business days or 45 calendar days, if provisional
credits in the amount of the alleged error were provided.  (Dkt. No. 324-74, Chan Decl.,
Ex. 71.)  BANA was also required to provide notice to class members whose accounts
were blocked solely due to CFF and the accounts would be unblocked if the class
members authenticate their identities.  (Id.)  Implementing the PI was an opportunity for
BANA to further investigate claims that were denied due to the CFF.
Then, in response to the Consent Orders in July 2022 between BANA and the
CFPB and the OCC, (Dkt. No. 324-75, Chan Decl., Ex. 72; Dkt. No. 324-76, Chan Decl.
Ex. 73), in October 2022, BANA implemented the Remediation Plan
.  (Dkt. No. 367-
6, Chan Decl., Ex. 74 (UNDER SEAL).  Under the Remediation Plan,
.
(Dkt. No. 367-6, Chan Decl., Ex. 74, at 6 (UNDER SEAL).)  But on this population,
 (Dkt. No. 367-6, Chan Decl., Ex. 74 at 6
(UNDER SEAL).)  Then,
.  (Dkt. No. 367-
6, Chan Decl., Ex. 74 at 7 (UNDER SEAL).)  According to the Remediation Plan,
.  (Id. at 6 (UNDER SEAL).)
Through the reconsideration process, the PI and the Remediation Plan,
.  There is no evidence
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that many unearthed fraudulent claims will arise.  In a declaration dated October 23,
2024, William M. Martin, Senior Vice President of Fraud Operations and a Prepaid Fraud
Operations Executive, states that in connection with the Remediation Plan,
.  (Dkt. No. 382-2, Brys Decl., Ex. 7, Martin Decl. ¶ 8 at 225 (UNDER SEAL).)
Martin declares that
.  (Id. ¶
9 at 226 (UNDER SEAL).)
.  (Id. ¶ 12 at 227 (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
.  (Id. (UNDER SEAL).)
. (Id. (UNDER SEAL).)
.  (Id. (UNDER
SEAL).)  BANA states
.  (Id. (UNDER SEAL).)  At the hearing, BANA asserted
.
Plaintiffs respond that a careful review of Martin’s declaration reveal
 are actual class members because
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.  (Dkt. No. 378 at 23.)  It is true that Martin has not stated
.  At the hearing, when the Court raised this question,
, it amounts to a de minimis number of
uninjured class members.  See Olean, 31 F.4th at 669 (no per se rule preventing district
courts from certifying a class that may include more than a de minimis number of
uninjured class members).
The Court agrees with Plaintiffs that BANA has not sufficiently demonstrated with
evidence that individual issues will predominate on the EFTA claim.  See Van v. LLR,
Inc., 61 F.4th 1053, 1067 (9th Cir. 2023) (“If the plaintiff demonstrates that class issues
exist, the defendant must invoke individualized issues and provide sufficient evidence
that the individualized issues bar recovery on at least some claims, thus raising the
spectre of class-member-by-class-member adjudication of the issue.”); True Health
Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 932 (9th Cir. 2018) (“[W]e do not
consider . . . defenses that [the defendant] might advance or for which it has presented no
evidence.”).  Martin’s declaration, nor other evidence, support BANA’s position that
individual inquiries will predominate over common ones.
BANA also maintains that the Remediation Plan is
.  (See Dkt. No. 367-6, Chan Decl., Ex. 74 at
6 (UNDER SEAL).)  At the hearing, BANA argued
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.  (See Dkt. No. 382-2, Brys Decl., Ex. 43 at 406 (UNDER SEAL).)
However, the evidence does not support BANA’s claim.  In response to Plaintiffs’
Interrogatory No. 39 to
 (Id. at 404
(UNDER SEAL)), BANA states it
.  (Id. at 406.)  BANA also states
that it
.  (Id. at 406.)
BANA’s response to Interrogatory No. 39 does not
.
Therefore, BANA has not shown, with evidence, that individual inquiries will
predominate over common ones.
BANA also incorrectly claims that illegitimate cardholders still need to be sorted
out and “those who remain still need to prove they would have prevailed on their error
claims (had the filter not been used) under the law and contract that constrained their
legally enforceable rights.”  (Dkt. No. 349 at 44.)  However, as noted above, the
claimants do not need to prove their unauthorized transaction claim, it is BANA that
needs to conduct the investigation by reviewing its own records.  Individual inquiries to
EDD cardholders will not be necessary.
Even if fraudulent claimants need to be sorted out, the process of fact-intensive
analysis will come from BANA and EDD’s records and not any evidence that a class
member will need to present; therefore, additional discovery or many mini-trials will not
overwhelm the proceedings.  See Bowerman v. Field Asset Servs., Inc., 60 F.4th 459, 469
(9th Cir. 2023) (ordering the de-certification of a class action where the trial of the
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individualized issues would be “prohibitively cumbersome” and the plaintiff had failed to
prove that the class issues nevertheless predominated over the individualized issues).
Predominance is not defeated in a case where there may be some individual inquiries
which can be determined by a review of Defendant’s records rather than a “prohibitively
cumbersome” trial of individualized issues.  See id.
The Court concludes that the putative class members are linked by a significant
operative fact, having been denied a claim or having their permanent credits rescinded,
and a primary legal issue, whether the subject policy violated the EFTA and whether each
class member suffered the same statutory injury.  See Mabary v. Hometown Bank, N.A.
Civ. No. 4:10–cv–3936, 2011 WL 5864325, at *3 (S.D. Tex. Nov. 22, 2011)
(predominance satisfied where plaintiff and potential class assert the same statutory
injury by the same course of conduct) (citing Burns v. First Am. Bank, No. 04–C–7682,
2006 WL 3754820, at *9 (N.D. Ill. Dec. 19, 2006) (observing, in the context of an EFTA
suit against a bank, that “[w]hatever the ultimate merits of this claim, it will be decided
predominately, if not entirely, based on common evidence of Defendant's conduct”)).
Finally, BANA summarily argues that because each member of a certified class
must have Article III standing, a class with uninjured class members cannot be certified
because individual inquiries would predominate over common ones relying on
TransUnion LLC v. Ramirez, 594 U.S. 413 (2021).  (Dkt. No. 349 at 42-43.)
While the Supreme Court held “[e]very class member must have Article III
standing in order to recover individual damages[,]”  TransUnion LLC v. Ramirez, 594
U.S. 413, 431 (2021), the Court specifically did not address “the distinct question
whether every class member must demonstrate standing before a court certifies a class.
Id. at 431 n.4.  In fact, the Ninth Circuit held there is no per se rule preventing district
courts from certifying a class that may include more than a de minimis number of
uninjured class members.  Olean, 31 F.4th at 669 (“[W]e reject the dissent's argument
that Rule 23 does not permit the certification of a class that potentially includes more
than a de minimis number of uninjured class members.”).  Therefore, the Court rejects
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BANA’s argument that prior to class certification, Plaintiffs must demonstrate that all
class members have Article III standing.  See Weiner v. Ocwen Fin. Corp., 343 F.R.D.
628, 631 (E.D. Cal. 2022) (granting reconsideration because court improperly held that
Plaintiff was required to establish Article III standing at certification).
2.
Due Process Violation under United States and California Constitution
(Credit Rescission and Account Freeze Classes)
Plaintiffs move to certify the Credit Rescission Class and Account Freeze Class
alleging their due process rights under the Fourteenth Amendment of the United States
Constitution pursuant to 42 U.S.C. § 1983 and Article I, § 7 of the California Constitution
were violated “by [BANA] seizing previously awarded permanent credits from their
EDD debit card accounts (Credit Rescission Class) and freezing those accounts (Account
Freeze Class) based solely on CFF-1, without providing pre-deprivation notice or a
meaningful opportunity to be heard, or even reasonable post-deprivation procedures.”
(Dkt. No. 324-1 at 35.)
“The touchstone of procedural due process is notice and an opportunity to be
heard” and “is a flexible concept that varies with the particular situation.”  Miranda v.
City of Casa Grande, 15 F.4th 1219, 1225 (9th Cir. 2021) (citations omitted).  A
procedural due process claim has two elements: “(1) a deprivation of a constitutionally
protected liberty or property interest, and (2) a denial of adequate procedural
protections.”  Id. at 1224-25 (citation omitted).  Further, BANA must have been acting
under color of state law.  Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999).
Article 1, section 7 of the California Constitution protects persons from deprivation of
“life, liberty, or property without due process of law,” Cal. Const. art. I, § 7(a), and is
“identical in scope with the federal due process clause.”  Owens v. City of Signal Hill,
154 Cal. App. 3d 123, 127 n. 2 (1984).
Plaintiffs propose the following questions common to the proposed class “(1)
whether the Bank had a policy and/or practice of automatically freezing the accounts, or
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rescinding the previously awarded credits, of EDD cardholders who submitted claims
involving unauthorized ATM withdrawals; (2) whether cardholders have a
constitutionally protected property interest in the EDD benefits the Bank froze and/or
rescinded; (3) whether the Bank’s policies and procedures for freezing accounts and
rescinding credits based solely on CFF-1 were constitutionally inadequate; and (4)
whether the Bank acted under color of law.”  (Dkt. No. 324-1 at 29.)  They maintain
these common questions predominate as to the absence of pre-deprivation notice or a
meaningful opportunity to be heard as well as failing to provide these cardholders any
reasonable post-deprivation procedures to regain access to their funds through BANA.
(Id. at 36.)  Instead, the EDD cardholders were subject to an unending loop where BANA
would refer cardholders to EDD and EDD would refer cardholders back to BANA
causing delays in resolving the status of their accounts.  (Id.)
BANA does not challenge that its failure to provide any pre-deprivation notice or
opportunity to be heard is a common issue that predominates.  (See Dkt. No. 349 at 35-
36).  Rather, BANA disputes Plaintiffs’ claim that there are common questions as to its
failure to provide a reasonable post-deprivation procedure to regain access to
cardholders’ funds through BANA because there were individuals whose issues EDD
handled and those it did not handle, cardholders who verified their identities with EDD
and those who did not, and cardholders who did not take advantage of the processes that
were available, all raising individual inquiries.  (Id. at 35, 36.)
A review of the evidence BANA provides to support the variation in EDD
cardholders’ experience with resolving account freezes does not support BANA’s claim.
The Account Freeze Class involves frozen accounts from September 28, 2020 to March
17, 2021. (Dkt. No. 386-1.)  First, as to whether EDD handled some cardholders’ frozen
account status and did not handle others, none of the supporting documents provide
succor because the communications are not clear whether these class member cards were
frozen rather than blocked, and no dates are provided as to when the freeze occurred or
when their issues were resolved.  (Dkt. No. 350-49, Brys Decl., Ex. 48; Dkt. No. 382-2,
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Brys Decl., Ex. 73 (UNDER SEAL); Dkt. No. 350-75, Brys Decl., Ex. 74 at 17-18; Dkt.
No. 350-76, Brys Decl., Ex. 75 at 6-7; Dkt. No. 350-77, Brys Decl., Ex. 76 at 6-7.)
BANA’s proposed evidence also does not show that
.
(See Dkt. No. 382-2, Brys Decl., Ex. 36 at 364 (UNDER SEAL)
; Dkt. No. 382-2, Brys Decl., Ex. 38 at 367 (UNDER SEAL)
; Dkt. No. 392-2, Brys Decl., Ex.
77 at 476 (UNDER SEAL)
.  BANA has failed to show, by evidence, that individual issues predominate
over common ones.  See Van, 61 F.4th at 1067.
Instead, Plaintiffs have shown that common issues predominate on each element of
a due process violation under the United States and California Constitutions based on
BANA’s uniform policy and practice of rescinding permanent credits and freezing
accounts solely relying on CFF-1 without any prior notice and the question can be
answered by common evidence.  They have also demonstrated common issues
predominate as to whether the post-deprivation due process procedures were adequate by
requiring cardholders to call EDD rather than BANA to unfreeze their accounts which
can be determined by common evidence because unfreezing accounts involved a uniform
procedure.
3.
California Consumer Privacy Act (EMV Chip Class)
23 BANA relies on call notes but they are hard to decipher and BANA has not provided any explanation
or guidance as to abbreviations/terminology/acronyms to assist the Court on its review.  The Court is
only able to glean a general understanding of its contents.
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Plaintiffs seek to certify an EMV Chip Class alleging a violation of California
Consumer Privacy Act (“CCPA”).
The CCPA provides a private right of action for actual or statutory damages to “[1]
[a]ny consumer whose nonencrypted and nonredacted personal information . . . [2]  is
subject to an unauthorized access and exfiltration, theft, or disclosure [3] as a result of the
business’s violation of the duty to implement and maintain reasonable security
procedures and practices appropriate to the nature of the information to protect the
personal information[.]”  Cal. Civ. Code § 1798.150(a)(1).
Plaintiffs assert that common issues include: “(1) whether all EDD debit cards
issued during the class period were mag-stripe only cards; (2) whether the unencrypted
information on EDD debit cards’ mag-stripes is ‘personal information’ (“PI”) under the
CCPA; (3) whether EMV chip technology was an industry-standard security measure;
and (4) whether EDD cardholders’ PI was ‘subject to unauthorized access and
exfiltration, theft, or disclosure’ due to the Bank’s issuance of mag-stripe only cards.’”
(Dkt. No. 324-1 at 30.)
Defendant disputes the fourth common question contending that individual issues
prevail on whether EDD cardholder’s PI was subject to an unauthorized access,
exfiltration, theft or disclosure due to issuance of mag-stripe only cards because some
cardholders who made an honest mistake disputed their own authorized transactions and
other cardholders’ PI was subject to unauthorized access because either they lost their
cards or their cards were stolen.  (Dkt. No. 349 at 36-37.)  BANA presents eleven
individuals who
.  (Dkt. No. 382-2, Brys Decl., Exs. 30-
40 (UNDER SEAL).)
First, to the extent individual issues may exist as to those cardholders who reported
lost or stolen cards, Plaintiffs are willing to amend the Class definition to remove
cardholders who reported a lost or stolen card and this can easily be identified through
BANA’s records.  (Dkt. No. 392 at 20 n. 15.)  Second, BANA has not identified any
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EDD cardholders who innocently reported an unauthorized transaction.  Therefore,
Plaintiffs have shown that common questions exist.
The parties dispute whether class members’ PI was subject to unauthorized access
and exfiltration, theft, or disclosure’ due to the Bank’s issuance of mag-stripe only cards
relying on their respective experts.   Ultimately, to resolve this question, the fact finder
will have to consider the evidence of the two competing experts.  Jane Cloninger,
Plaintiffs’ expert on EMV chip cards, opines that from January 2020 to July 2021,
BANA’s decision to proceed without EMV chips in its EDD debit cards rendered the
cardholders especially vulnerable to counterfeit card fraud.  (Dkt. No. 324-5, Chan Decl.,
Ex. 2, Cloninger Expert Report ¶¶ 14, 93-96.)  In contrast, Pamela Joseph, Defendant’s
expert, concludes that
.  (Dkt. No. 350-
5, Brys Decl., Ex. 4, Joseph Expert Report ¶¶ 14-16, 93-94.)  This question can be
resolved with common evidence using the parties’ expert reports and documents
produced by BANA.  As such, BANA has not shown that individual issues will prevail
on whether EDD cardholders’ PI was subject to an unauthorized access, exfiltration, theft
or disclosure.
Accordingly, the Court amends the EMV Chip Class definition to exclude EDD
cardholders who reported a lost or stolen card and concludes that Plaintiffs have shown
that common questions predominate on the CCPA cause of action for the EMV Chip
Class.
4.
Breach of Fiduciary Duty24 (Claim Denial, Credit Rescission, Account
Freeze, and EMV Chip Classes)
24 In its opposition, under the heading “Common-law claims”, BANA lumps the arguments on the
breach of fiduciary duty, negligence and breach of the covenant of good faith and fair dealing together
without separating out the elements of each cause of action and why commonality has not been satisfied
as to each common law cause of action.  The Court did its best to decipher which argument
corresponded to which cause of action.
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Plaintiffs seek to certify the Claim Denial, Credit Rescission, Account Freeze, and
EMV Chip Classes alleging that BANA breached its fiduciary duty by failing to take all
reasonable and necessary steps to “protect, preserve, and secure Plaintiffs’ and class
members’ private data and confidential information from unauthorized access, fraud or
theft” and to ensure legitimate benefits recipients were not denied access to their account
funds by taking all necessary steps including encrypting such information, using EMV
chips and other measures.  (Dkt. No. 324-1 at 39; Dkt. No. 406, TAMCC ¶¶ 632-33.)
They also claim that BANA breached its duty by prioritizing its own financial self-
interest above the interests of EDD cardholders by utilizing mag-stripe only cards rather
than industry-standard EMV chips and by implementing its policy and practice of using
CFF-1 in denying claims, rescinding credits and freezing accounts.  (Dkt. No. 406,
TAMCC ¶ 634.)
In California, a plaintiff must prove the following elements to establish a cause of
action breach of fiduciary duty: “(1) existence of a fiduciary duty; (2) breach of the
fiduciary duty; and (3) damage proximately caused by the breach.”  Gutierrez v. Girardi,
194 Cal. App. 4th 925, 932 (2011) (citation omitted).
Ordinarily, a relationship between a bank and its depositor is not a fiduciary one,
Oaks Mgmt. Corp. v. Superior Ct., 145 Cal. App. 4th 453, 466 (2006) (“[I]n ordinary
banking transactions the ‘bank is in no sense a true fiduciary.’”), but courts recognize
that, under “special circumstances,” a bank may enter into a “special relationship” with a
depositor and owe fiduciary duties.  Copesky v. Superior Ct., 229 Cal. App. 3d 678, 691
n.12 (1991).  A bank enters into a “special relationship” with a depositor either by
“affirmatively offer[ing] trust and other specifically fiduciary services,” id., or when the
relationship involves characteristics of a “special relationship” such as “(1) inherently
unequal bargaining positions; (2) nonprofit motivation [of the depositor], i.e., objective of
securing peace of mind, security; (3) inadequacy of ordinary contract damages; (4)
special vulnerability of one party to harm as a result of breach of trust of the other; and
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(5) awareness by the other of this special vulnerability.”  Id. at 687 n.7 (quoting Wallis v.
Superior Ct., 160 Cal. App. 3d 1109, 1118 (1984)).  In particular, “[m]any banks
affirmatively offer trust and other specifically fiduciary services, and as such are in a
position to do great harm if the trust agreement is broken in bad faith.”  Id.
A fiduciary relationship is any relation existing between parties to a
transaction wherein one of the parties is in duty bound to act with the utmost
good faith for the benefit of the other party.  Such a relation ordinarily arises
where a confidence is reposed by one person in the integrity of another, and
in such a relation the party in whom the confidence is reposed, if he
voluntarily accepts or assumes to accept the confidence, can take no
advantage from his acts relating to the interest of the other party without the
latter's knowledge or consent. . . .
Wolf v. Superior Ct., 107 Cal. App. 4th 25, 29 (2003) (internal quotation marks and
citations omitted).
According to Plaintiffs, common issues include: “(1) whether the Bank entered
into a ‘special relationship’ with EDD cardholders and thereby incurred fiduciary
obligations; and (2) whether the Bank breached its fiduciary duties by prioritizing its own
financial self-interest above the interests of EDD cardholders by choosing not to include
industry-standard EMV chips in EDD debit cards and by implementing its CFF-1 Claim
Denial, Credit Rescission, and Account Freeze Policies.”  (Dkt. No. 324-1 at 29.)
In opposition, BANA argues that the first common issue, whether there was a
special relationship between BANA and EDD cardholders, will require fact intensive
inquiries into each cardholders’ communications with the bank to determine if a special
relationship was established and is not subject to common proof.  (Dkt. No. 349 at 39.)
The Court disagrees.  BANA fails to explain or provide evidence that each cardholder
had communications with it when it created the debit card accounts.  Instead, the putative
class includes cardholders who uniformly received unemployment insurance benefits
through debit cards issued by BANA pursuant to the exclusive contract between BANA
and EDD.  BANA has not provided any evidence that the EDD cardholders had any
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communications with BANA prior to receiving the debit cards.  The question of whether
there was a special relationship created from receiving unemployment insurance benefits
through the debit card accounts with BANA is a common one that predominates and that
can be resolved with common evidence.  Accordingly, the Court finds predominance
satisfied as to Plaintiffs’ claim for breach of fiduciary duty.25
5.
Negligence/Negligence Per Se (all Classes)
Plaintiffs seek to certify all Classes alleging negligence claiming that Defendant
breached its duty of care by failing to (1) maintain the security of their personal and
account information; (2) issue EDD Debit Cards with EMV chips; (3) employ reasonable
fraud prevention and notification practices; (4) provide timely and effective customer
service; (5) process and investigate claims in a timely manner; and (6) provide
provisional credits while investigating fraud claims.  (Dkt. No. 324-1 at 41-43; Dkt. No.
406, TAMCC ¶¶ 586-87).  They also seek to certify all Classes alleging negligence per se
based on violations of (1) the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801 et seq.; (2)
the California Financial Information Privacy Act, Cal. Fin. Code §§ 4050 et seq.; (3) the
California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq.; and (4) the
California Consumer Records Act, id. §§ 1798.80 et seq.  (Dkt. No. 324-1 at 43; Dkt. No.
406, TAMCC ¶¶ 589-90.)
Under California law, the elements of a negligence claim are (1) duty, (2) breach,
(3) causation, and (4) injury.  Vasilenko v. Grace Family Church, 3 Cal. 5th 1077, 1083
25 BANA argues, in one sentence, that the affirmative defenses of sophistication and lack of reliance
defeat commonality as to the breach of fiduciary duty claim yet provides no explanation as how it
applies to the facts of the case and does not provide any legal authority.  (Dkt. No. 349 at 40.)  The
Court declines to consider a one-sentence argument.  See Mooney v. Roller Bearing Co. of Am., Inc.,
CASE NO. 2:20-cv-01030-LK, 2023 WL 6807198, at *6 (W.D. Wash. Oct. 2013) (“The Court also
declines to consider that one-sentence argument because RBC did not elaborate on it or cite to anything
in the record to support it.”) (citing United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010)
(“Arguments made in passing and not supported by citations to the record or to case authority are
generally deemed waived.”)); Delashaw v. Seattle Times Co., No. C18-0537-JLR, 2018 WL 4027078, at
*14 (W.D. Wash. Aug. 23, 2018) (declining to address a party's “cursory argument” because the party
did “not provide enough detail to allow the court to fully evaluate it.”).
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(2017).  “In California, the ‘general rule’ is that people owe a duty of care to avoid
causing harm to others and that they are thus usually liable for injuries their negligence
inflicts.”  S. Cal. Gas Leak Cases, 7 Cal. 5th 391, 398 (2019).  However, “[i]n the
absence of personal injury, physical damage to property, a special relationship between
the parties, or some other common law exception to the rule, recovery of purely
economic loss for negligence is foreclosed.”  Stasi v. Inmediata Health Grp. Corp., 501
F. Supp. 3d 898, 913 (S.D. Cal. 2020) (citing J’Aire Corp. v. Gregory, 24 Cal. 3d 799,
803-04 (1979)); S. Cal. Gas, 7 Cal. 5th at 400 (“[L]iability in negligence for purely
economic losses . . . is ‘the exception, not the rule.’”).  Negligence per se borrows statutes
to prove duty of care and standard of care.  Elsner v. Uveges, 34 Cal. 4th 915, 927 n.8
(2004); David v. Hernandez, 226 Cal. App. 4th 578, 584 (2014) (“Under the doctrine of
negligence per se, the plaintiff ‘borrows ’ statutes to prove duty of care and standard of
care.”).  Therefore, a presumption of negligence arises from a violation of a statute.  Id.
Plaintiffs rely on the “special relationship” exception to the economic loss
doctrine.  “The primary exception to the general rule of no recovery for negligently
inflicted purely economic losses is where the plaintiff and the defendant have a ‘special
relationship.’”  S. Cal. Gas, 7 Cal. 5th at 400.  “What we mean by special relationship is
that the plaintiff was an intended beneficiary of a particular transaction but was harmed
by the defendant's negligence in carrying it out.”  Id.  The California Supreme Court set
out six factors to determine whether a special relationship exists:
(i) the extent to which the transaction was intended to affect the plaintiff, . . .
(ii) the foreseeability of harm to the plaintiff, (iii) the degree of certainty that
the plaintiff suffered injury, (iv) the closeness of the connection between the
defendant’s conduct and the injury suffered, (v) the moral blame attached to
the defendant’s conduct, and (vi) the policy of preventing future harm.
Id. at 401 (internal quotations and citations omitted).
Here, Plaintiffs assert that common issues include “(1) whether the Bank had a
‘special relationship’ with class members and owed them a duty of care; (2) whether the
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Bank breached that duty by using CFF-1 to auto-deny claims, auto-rescind permanent
credits, and auto-freeze accounts; (3) whether the Bank breached its duty by grossly
understaffing its Claims call center; and (4) whether the Bank breached its duty by failing
to include industry-standard EMV chips in EDD debit cards.”  (Dkt. No. 324-1 at 29.)
They contend that these common issues predominate and can be demonstrated by
common evidence.  (Id. at 41-43.)
In opposition, BANA only dispute that there are not common issues as to
causation.  (Dkt. No. 349 at 37-38.)  However, Plaintiffs need not demonstrate that all
elements to support a cause of action must be common; only one common issue suffices.
See Dukes, 564 U.S. at 359 (“We quite agree that for purposes of Rule 23(a)(2), even a
single common question will do.”) (internal quotation marks omitted); Wang v. Chinese
Daily News, 737 F.3d 538, 544 (9th Cir. 2013) (“Plaintiffs need not show that every
question in the case, or even a preponderance of questions, is capable of classwide
resolution.”); Mazza v. Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th Cir. 2012)
(“[C]ommonality only requires a single significant question of law or fact.”); Rodriguez
v. Hayes, 591 F.3d 1105, 1122 (9th Cir. 2010) (Commonality is satisfied “if the named
plaintiffs share at least one question of fact or law with the grievances of the prospective
class.”) (quoting Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)).
Nonetheless, in reply, Plaintiffs contend that BANA admits denying claims,
rescinding permanent credits, and freezing accounts based solely on CFF-1; therefore, the
Claim Denial, Credit Rescission and Account Freeze Class members suffered harm from
BANA’s uniform policy and practice demonstrating causation.  (Dkt. No. 392 at 18.)
Further, Plaintiffs argue that the Customer Service Class members suffered
unprecedented long wait times and BANA’s use of mag-stripe only cards subjected each
EMV Chip class member to a heightened risk of skimming.  (Id. at 19.)  The Court agrees
and concludes that Plaintiffs have raised common questions on causation.
Next, BANA objects to the negligence claim as to the Customer Service Class
arguing that not all class members had complaints about the call center, including three of
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the nine Class Plaintiffs.26  (Dkt. No. 349 at 38.)  However, the Court notes that the
Customer Service Class includes members who telephoned the Claim call center between
September 13, 2020 through November 21, 2020.  (See Dkt. No. 386-1.)  The three
unidentified Class Plaintiffs BANA claims had no complaints about the call center, which
the Court presumes is Class Plaintiffs Koole, McClure, and Rivera, are not members of
the Customer Service Class as they called outside these dates and therefore, do not
represent the Customer Service Class.
BANA next argues that there is no evidence that each of the 15,600 class members
spent more than an hour on hold each time and relying on “average” hold times cannot
suffice to demonstrate what class members actually experienced.  (Dkt. No. 349 at 39.)
Plaintiffs’ theory on the Customer Service Class is that BANA made class members
suffer elevated wait times, purposely in part to avoid issuing credits on claims, and
common evidence will show that
.  (Dkt. No. 378-6, Chan Suppl. Decl.,
Ex. 161, Minnucci Rebuttal Expert Report ¶¶ 13-14.)
In Tyson Foods, the United States Supreme Court held that representative or
statistical evidence can be used to show damages as long as the evidence is reliable.
Tyson Foods, 577 U.S. at 454-55.  The Court explained that “[w]hether and when
statistical evidence can be used to establish classwide liability will depend on the purpose
for which the evidence is being introduced and on ‘the elements of the underlying cause
of action[.]’”  Id. at 455.  The statistical evidence was permitted, in Tyson Foods, because
the employer failed to keep adequate time keeping records and the statistical evidence
26 Even though BANA recognizes Plaintiffs’ theory on the Claims call center has shifted from the
original allegation that BANA failed to provide reasonably timely and effective customer service to
BANA failed to staff its call centers causing EDD cardholders to spend an excessive amount of time on
hold each time, it repeatedly argues that individual issues will predominate as the fact-finder will have to
look at each cardholders’ experience with the Claims call center.  (See Dkt. No. 349 at 38, 39, 41.)  As
explained above, individual inquiries will not need to be made as to the alleged uniform excessive hold
times.
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was used to fill this evidentiary gap.  Id. at 456.  Further, the Court suggested that
statistical evidence is a permissible method to prove classwide liability when the
plaintiffs can “show[] that each class member could have relied on that sample to
establish liability if he or she had brought an individual action.”  Id. at 455.
Here, it is disputed whether BANA’s call records capture
.
(Compare Dkt. No. 378-7, Chan Suppl. Decl., Ex. 162, Minnucci Rebuttal Expert Report
¶¶ 36-37 (“Bank’s phone systems
”) with Dkt. No. 382-2, Brys Decl., Ex. 5, Hindle Expert Report ¶ 18
(UNDER SEAL) (“Claim call center systems of record between September 13, 2020 and
November 21, 2020 did not contain or retain data or information showing the time a
particular, individual EDD prepaid cardholder spent on hold when calling the Claims call
center during the Proposed Class Period”).)  The Court notes that expert discovery has
not yet concluded and to the extent it remains an issue of fact, it will be presented to the
factfinder at trial.  (Dkt. No. 302.)
Nonetheless, Plaintiffs claim that the average excess hold time can still be used to
determine classwide damages for the Customer Service Class.  Mr. Minnucci analyzed
the Claims call center data from 2020-21 which revealed that
experienced an extremely long wait for service.  (Dkt. No. 393-1, Chan Decl., Ex. 3,
Minnucci Expert Report ¶¶ 42-50 & App’x F (UNDER SEAL).)  To the extent that
BANA does not have records that capture each caller’s hold time, statistical evidence is
permissible to show classwide damages in this case because Class Plaintiffs Chong,
Moon, Moore, Oosthuizen, Willrich and Yuan contacted the Claim call center on
multiple occasions.  Therefore, if they were to prove their damages on an individual
basis, they would be entitled to use statistical evidence to support their individual
damages claim.  See Tysons Food, 577 U.S. at 455 (statistical evidence permitted to show
classwide damages where “each class member could have relied on [the average excess
hold time] to establish liability if he or she had brought an individual action.”).
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To the extent BANA disputes the ASA calculated by Mr. Minnucci, (Dkt. No. 349
at 49), that question may be litigated at trial.  See Tysons Foods, 577 U.S. at 459
(“Reasonable minds may differ as to whether the average time [ ] calculated is probative
as to the time actually worked by each employee. Resolving that question, however, is
the near-exclusive province of the jury.”).
As to BANA’s other arguments, similar with the analysis and conclusion above on
breach of fiduciary duty, common issues predominate on whether there was a special
relationship between BANA and the EDD cardholders because they uniformly received
unemployment insurance benefits with EDD through debit cards issued by BANA
pursuant to the exclusive contract between BANA and EDD.  The same evidence can be
used to make this determination.
As with the analysis and conclusion on the CCPA claim, common issues
predominate on whether EDD cardholders’ PI was subject to an unauthorized access and
exfiltration, theft, or disclosure due to BANA’s violation of the duty to implement and
maintain reasonable security procedures and practices appropriate to the nature of the
information to protect the personal information.”  See Cal. Civ. Code § 1798.150(a)(1).
BANA also summarily argue that affirmative defenses, like contributory
negligence, such as those who compromised their own accounts by giving friends or
family access to their cards or PINs and one cardholder who gave access to his card to his
close friend defeats predominance.  (Dkt. No. 349 at 40.)  As discussed above,
affirmative defenses can be determined at the claim or damages stage and does not defeat
predominance.  See Ruiz Torres, 835 F.3d 1125.  In conclusion, the Court finds that
Plaintiffs have demonstrated that common issues predominate on the
negligence/negligence per se cause of action.
6.
Breach of the Implied Covenant of Good Faith and Fair Dealing (Claim
Denial, Credit Rescission, Account Freeze and Customer Service
Classes)
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Plaintiffs seek to certify the Claim Denial, Credit Rescission, Account Freeze and
Customer Service Classes alleging BANA breached the implied covenant of good faith
and fair dealing.  (See Dkt. No. 406, TAMCC ¶¶ 619-623.)
“There is an implied covenant of good faith and fair dealing in every contract that
neither party will do anything which will injure the right of the other to receive the
benefits of the agreement.”  Foley v. Interactive Data Corp., 47 Cal. 3d 654, 684 (1988)
(quoting Comunale v. Traders & Gen. Ins. Co., 50 Cal. 2d 654, 658 (1958)).  The implied
covenant “prevent[s] a contracting party from engaging in conduct which (while not
technically transgressing the express covenants) frustrates the other party’s rights to the
benefits of the contract.”  Love v. Fire Ins. Exchange, 221 Cal. App. 3d 1136, 1153
(1990).
The elements to support a claim for breach of the covenant of good faith and fair
dealing are: “(1) the parties entered into a contract; (2) the plaintiff fulfilled his
obligations under the contract; (3) any conditions precedent to the defendant's
performance occurred; (4) the defendant unfairly interfered with the plaintiff's rights to
receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant's
conduct.”  Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952, 968 (N.D.
Cal. 2010) (citing Judicial Council of California Civil Jury Instruction No. 325).
“The covenant of good faith finds particular application in situations where one
party is invested with a discretionary power affecting the rights of another.”  3500
Sepulveda, LLC v. Macy’s W. Stores, Inc., 980 F.3d 1317, 1324 (9th Cir. 2020) (quoting
Carma Devs. (Cal.), Inc. v. Marathon Dev. Cal., Inc., 2 Cal. 4th 342, 372 (1992)).  “The
party with discretionary power must exercise such power in good faith and through
‘objectively reasonable conduct.’”  Id. (quoting Badie v. Bank of Am., 67 Cal. App. 4th
779, 796 (1998)).  “A party violates the covenant if it subjectively lacks belief in the
validity of its act or if its conduct is objectively unreasonable.”  Carma Devs., 2 Cal. 4th
at 372.  “In the case of a discretionary power, it has been suggested the covenant requires
the party holding such power to exercise it ‘for any purpose within the reasonable
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contemplation of the parties at the time of formation—to capture opportunities that were
preserved upon entering the contract, interpreted objectively.’”  Id. (citation omitted).
Plaintiffs contend common issues include: “(1) whether the Bank had a policy or
practice of automatically denying and rescinding unauthorized-transaction claims and
freezing accounts based solely on CFF-1; (2) whether the Bank’s decision to auto-deny
unauthorized-transaction claims, rescind grants of permanent credit, and freeze
cardholder accounts based solely on CFF-1 was objectively reasonable; (3) whether the
Bank subjectively lacked belief in the validity of its decision to implement its CFF-1
Policies; and (4) whether the Bank reduced call center staffing knowing or intending the
resulting impairment of class members’ rights.”  (Dkt. No. 324-1 at 30.)  They contend
that common issues predominate because BANA engaged in objectively unreasonable
exercise of its discretionary contractual authority by adopting policies and practices
applicable to all class members in the same manner and pursuant to the same form
contract.  (Id. at 43-44.)
For the reasons stated above on the EFTA claims and the Customer Service Class
claims, the Court rejects Defendant’s argument that the question of whether its denial of
error claims was objectively reasonable will require looking at individual account records
to determine a violation of the EFTA claim and looking at individual call center
experiences to determine if each class members’ rights was impaired by reduced call
center staffing.  (Dkt. No. 349 at 40-41.)
The Agreement granted BANA discretion which applied to all EDD cardholders.
On the Claim Denial and Credit Recission Classes, the relevant provisions under the
California EDD Debit Card Account Agreement (“Agreement”) provided that “you may
incur no liability for unauthorized use of your Card up to the amount of the unauthorized
transaction, provided you notify us within a reasonable time of the loss or theft of your
Card, Card number or PIN or its unauthorized use . . . .”  (Dkt. No. 379-5, Chan Decl.,
Ex. 76 at ¶ 9.)  A transaction is not considered “unauthorized” . . . “for any other reason
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we conclude that the facts and circumstances do not reasonably support a claim for
unauthorized use.”  (Id.)
Further, as to Account Freeze Class, the Agreement provided BANA with
discretion if we “suspect irregular, unauthorized, or unlawful activities may be involved
with your Account, we may ‘freeze’ (or place a hold on) the balance pending an
investigation of such suspected activities.  If we freeze your Account, we will give you a
notice required by law.”  (Id. ¶ 2.)
Finally, as to the Customer Service Class, the Agreement stated,
Please contact us at the numbers listed below AT ONCE if you believe your
Card has been lost or stolen, or if you believe that someone may use or has
used your PIN assigned to your Card without your permission. Telephoning
is the best way of keeping your possible losses down. You could lose all the
money in your Account. If you tell us within two business days after you
learn of the loss or theft, you can lose no more than $50 for an unauthorized
transaction or a series of related unauthorized transfers should someone use
your Card or PIN.
If you believe your Card has been lost or stolen, telephone us at
1.866.692.9374, 1.866.656.5913 TTY, or 423.262.1650 (Collect, when
calling outside the U.S.), or write to: Bank of America. P.O. Box 8488,
Gray, TN 37615-8488.
(Id. ¶¶ 10-11.)
Therefore, based on the discretion granted to BANA under the Agreement
applicable to all EDD cardholders, the Court concludes that common issues predominate
on whether BANA’s uniform practice and policy of automatically denying unauthorized
transaction claims, rescinding permanent credits, and freezing cardholder accounts based
solely on CFF-1 was objectively reasonable; whether BANA subjectively lacked belief in
the validity of its decision to implement its CFF-1 Policies; and whether BANA reduced
its call center staffing knowingly to impair class members’ rights.  Further, because the
same form contract was used for all EDD cardholders and California law applies an
objective standard, the duty of good faith and fair dealing is amenable to class action.
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See Vaccarino v. Midland Life Ins. Co., No. CV 11–5858 CAS (MANx), 2013 WL
3200500, at *19 (C.D. Cal. June 17, 2013) (common issues predominated as to breach of
implied covenant claims against insurer with regard to annuity contracts) (citing Lazar v.
Hertz Corp., 143 Cal. App. 3d 128, 141 (1983) (holding that “[t]he essence of the good
faith covenant is objectively reasonable conduct,” and certifying class on this claim));
Yue v. Conseco Life Ins. Co., 282 F.R.D. 469, 476 (2012) (individual issues do not
predominate on whether the defendant breached the implied covenant of good faith and
fair dealing because it is determined by an objective standard).
Finally, BANA contends those cardholders who did not fulfill their own
contractual obligations by lending their cards and disclosing their PINs to friends are not
subject to recovery.  (Dkt. No. 349 at 41.)  The Court agrees; however, Defendant has not
shown with evidence that cardholders lent their debit cards to friends with the PINs.
Therefore, the Court concludes that Plaintiffs have demonstrated common issues
will predominate over individual ones on the claim for breach of the implied covenant of
good faith and fair dealing.
7.
UCL (Claim Denial, Credit Rescission and Account Freeze Classes)
Plaintiffs move to certify the Claim Denial, Credit Rescission and Account Freeze
Classes with respect to UCL claim under the Balancing, Immoral or Tethering tests of the
“unfair” prong.  (Dkt. No. 406, TAMCC ¶¶ 581(a)-(c), 582(a)-(c), 584.)
The UCL prohibits “any [1] unlawful, [2] unfair or [3] fraudulent business act or
practice.”  Cal. Bus. & Prof. Code § 17200.  The “unfair” prong of the UCL creates a
cause of action for a business practice that is unfair even if not proscribed by some other
law.  Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1143 (2003).  The
Ninth Circuit has identified the following three tests that California courts have
considered in addressing the “unfair” prong in a consumer case:  “(1) whether the
challenged conduct is ‘tethered to any underlying constitutional, statutory or regulatory
provision, or that it threatens an incipient violation of an antitrust law, or violates the
policy or spirit of an antitrust law,’ [the Tethering test] ; (2) whether the practice is
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‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,’
[the Immoral test]; or (3) whether the practice's impact on the victim outweighs “the
reasons, justifications and motives of the alleged wrongdoer [the Balancing test].”    Doe
v. CVS Pharm., 982 F.3d 1204, 1214-15 (9th Cir. 2020) (internal citations omitted).
Plaintiffs propose that common issues include: “(1) whether the Claim Denial,
Credit Rescission, and Account Freeze Policies were ‘unfair’ to class members under any
of the UCL’s three tests for unfairness; and (2) whether class members, if they do not
prevail on their damages claims, lack an adequate legal remedy and can therefore be
awarded restitution.”  (Dkt. No. 324-1 at 30.)  In addition, they assert common issues will
predominate because the answers will be the same for all class members.  (Id. at 47-48.)
Finally, they advance the argument that whether class members lack an adequate legal
remedy will be answered the same for all class members and UCL restitution can also be
calculated on a class wide basis.  (Id. at 48.)
BANA repeats its argument that the class definition does not distinguish between
legitimate cardholders and criminal fraudsters; therefore, fraudsters were not treated
“unfairly.”  (Dkt. No. 349 at 41.)  Further, BANA claims that legitimate cardholders who
made innocent mistakes, those whose notices were untimely or those who reported
unauthorized transactions made by someone whom they let access their cards were not
treated unfairly.  (Id.)  But, as discussed above on the EFTA claim, the Class excludes
those who engaged in fraudulent conduct, and to the extent that not all fraudsters have
been identified, BANA has not provided evidence that the individual numbers of
fraudsters would predominate.  BANA has already conducted reviews of Class members’
claims that were denied during the reconsideration process, while the PI was in effect and
during the implementation of the Remediation Plan
.
Furthermore, BANA retains documents to make these determinations, thereby, forgoing
the need for hundreds of mini-trials that would defeat predominance.
BANA also simply argues that when conducting an analysis on the “balancing
test”, questions regarding “gravity of the harm to the alleged victim” with the “reasons,
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justifications and motives” of BANA’s policies will inevitably require individualized
determinations relying on Herskowitz v. Apple, Inc., 301 F.R.D. 460, 476 (N.D. Cal.
2014); however, in that case, the court found individual questions will predominate
because “Plaintiffs have failed to provide any evidence to support the existence of a
uniform business practice or series of practices respecting refunds in cases of double-
billing.”  Id.  In contrast, here, Plaintiffs have provided evidence of a uniform policy and
practice by BANA using CFF-1 to deny claims, rescind permanent credits and freeze
accounts; therefore, these common issues predominate as all EDD cardholders suffered
the same harm of being denied access to their funds through these policies and the
reasons, justification and motives for the Bank’s policy of using CFF-1 will also be
common.  See Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 737 (9th Cir. 2007)
(affirming class certification where court found common issues predominated on the
unfair prong of UCL claim because claim was based on “uniform disclosures made” to all
consumers).  BANA’s records also show how long class members were deprived of their
funds.
In addition, district courts routinely certify classes under the unfair prong of the
UCL based on the uniform conduct by the defendant.  See Brooks v. Thomson Reuters
Corp., Case No. 21-cv-01418-EMC, 2023 WL 9316647, at *8 (N.D. Cal. Aug. 10, 2023);
Gaudin v. Saxon Mortg. Servs., Inc., 417 F.R.D. 417, 430 (N.D. Cal. 2013) (finding
common issues predominate under the unfair prong of the UCL based on “Defendant's
uniform practices”); Vaccarino v. Midland Nat. Life Ins. Co., No. CV 11-5858 CAS
MANX, 2013 WL 3200500, at *15-16 (C.D. Cal. June 17, 2013) (finding common issues
predominate for common law fraud and the fraud prong of the UCL where “all class
members here received uniform representations, and [Defendant] treated the proposed
class the same”).  Accordingly, the Court concludes that Plaintiffs have demonstrated
common issues will predominate on the unfair prong of the UCL.
/ / /
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8.
Whether the Damages Models Satisfy Predominance
Plaintiffs bear the burden of providing a damages model showing that “damages
are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).”
Comcast, 569 U.S. at 35.  The damages model “must measure only those damages
attributable to” the plaintiff’s theory of liability.  Id.  Plaintiffs “must be able to show that
[their] damages stemmed from the defendant’s actions that created the legal liability.”
Leyva v. Medline Indus., Inc., 716 F.3d 510, 514 (9th Cir. 2013).  While a plaintiff must
present the likely method for determining class damages, “it is not necessary to show that
[this] method will work with certainty at this time.”  Chavez v. Blue Sky Natural
Beverage Co., 268 F.R.D. 365, 379 (N.D. Cal. 2010).  Furthermore, Plaintiffs “need only
show that such damages can be determined without excessive difficulty and attributed to
their theory of liability”, that any “uncertainty regarding class members’ damages does
not prevent certification of a class as long as a valid method has been proposed for
calculating those damages”, and  “precise [data] is unnecessary for class certification”
because “the question is only whether [plaintiff] has presented a workable method.”  See
Lytle v. Nutramax Labs, Inc., 114 F.4th 1011, 1025 (9th Cir. 2024) (citations omitted)
(class treatment appropriate if damages could be calculated on a classwide basis, “even
where such calculations have not yet been performed.”)  Class certification should not be
denied “even if plaintiffs may have to prove individualized damages at trial, a conclusion
implicitly based on the determination that such individualized issues do not predominate
over common ones.”  Vaquero v. Ashley Furniture Indus., Inc., 824 F.3d 1150, 1155 (9th
Cir. 2016); see also Pulaski & Middleman, LLC v. Google, Inc., 802 F.3d 979, 988 (9th
Cir. 2015) (“differences in damage calculations do not defeat class certification” survives
Comcast.)
a.
Actual Damages for Credit Denial, Credit Rescission, Account
Freeze and EMV Chip Classes
Plaintiffs seek actual damages under the EFTA, due process, breach of fiduciary
duty, negligence, and breach of the implied covenant of good faith and fair dealing
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claims.  (See Dkt. No. 406, TAMCC.)  They argue that damages can be calculated using
common methodologies using BANA’s databases which contain detailed information
about the amount of each denied claim, rescinded credit, and frozen account, and the
length of time each class member was deprived of the benefits.  (Dkt. No. 324-1 at 49-
52.)  According to Plaintiffs, actual damages is calculated by adding the principal amount
of actual damages with consequential damages.
i.
Principal Amount of Actual Damages for the Credit Denial,
Credit Rescission, Account Freeze and EMV Chip Classes
Plaintiffs propose that the principal amount of actual damages for the Claim
Denial, Credit Rescission and Account Freeze Classes equal the total dollar amount of
each claim BANA denied, the total dollar amount of credit rescinded, and the total dollar
amount of frozen balances based on CFF-1 which are readily available using BANA’s
documents.  (Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert Report ¶¶ 8, 12, 16, 32-
34, 37, 81, 83, 94-96, 98, 111, 119 (UNDER SEAL).)
On this calculation, BANA presents two arguments.  First, it objects asserting the
“total dollar value” of each claim fails to distinguish between fraudulent and valid claims
made by EDD cardholders.  (Dkt. No. 349 at 45.)  Second, even if those fraudulent
claims were accounted for
, the putative class
members have already been paid the total dollar value, and as such, they would receive a
windfall.  (Id.)
BANA does not dispute that Plaintiffs’ damages model stems from BANA’s
actions that created the legal liability.  Instead, BANA challenges the determination of
who among the class member are entitled to actual damages which courts have repeatedly
held does not defeat predominance.  See Vaquero, 824 F.3d at 1155; Lytle, 114 F.4th at
1026-27 (holding “that individual questions of damages do not necessarily defeat class
certification” and “the possibility that an ascertainable portion of the class may be unable
to recover . . . does not in itself demonstrate class certification was improper.”) (citing
Olean, 31 F.4th at 680-81 (holding that the possibility some class members suffered no
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injury does not, by itself, defeat class certification); Just Film, 847 F.3d at 1120 (“To gain
class certification, Plaintiffs need to be able to allege that their damages arise from a
course of conduct that impacted the class. But they need not show that each members’
damages from that conduct are identical.”)).  Moreover, as discussed above, BANA has
not demonstrated that individual questions will predominate on whether the putative class
members’ claims were fraudulent or not.  BANA’s concern about uninjured class
members can be resolved at the claims or damages phase.  See Ruiz Torres, 835 F.3d at
1137.
Second, BANA contends that even if Plaintiffs’ actual damages model can be a
valid measure of damages, the class members in the Class Denial, Credit Rescission and
Account Freeze Classes were already paid the actual dollar value of their claims.  (Dkt.
No. 349 at 45-46; see Dkt No. 350-2, Brys Decl., Ex. 1, Stango Expert Report ¶ 37
(“because consumers have been fully repaid for the principal amounts of damages, they
are no longer economically damaged by those amounts”).)  Plaintiffs are not in
disagreement with BANA that EDD cardholders are not entitled to a windfall or double
recovery of actual damages and is acknowledged in Mr. Regan’s expert report explaining
that any overlapping recoveries will be de-duplicated.27  (Dkt.  No. 378-7, Chan Suppl.
Decl., Ex. 162, Regan Rebuttal Report ¶ 15; see also Dkt. No. 386-4, Chan Decl., Ex. 4,
Regan Expert Report ¶ 62 n. 70; ¶ 104, n. 133.)
While not expressly argued or analyzed, BANA seems to suggest that because
, they are no longer economically damaged and are
27 Mr. Regan explains that he calculated damages on an independent, standalone basis for each claim so
that damages could be easily calculated if a claim were to be dismissed or if damages were to be
awarded for only one of the proposed classes.  (Dkt. No. 378-7, Chan Suppl. Decl., Ex. 162, Regan
Rebuttal Report ¶ 15 (“Therefore, if an award is made, and depending on the nature of the award, it may
be appropriate to disaggregate the damage amounts”); see also Dkt. No. 386-4, Chan Decl., Ex. 4,
Regan Expert Report ¶ 62 n. 70 (“if damages are awarded to the Claim Denial Class and the Account
Freeze Class, it is appropriate to disaggregate the damages amount”); id. ¶ 104, n. 133.)
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not entitled to any additional damages without a showing of further harm.  (Dkt. No 349
at 45-46; see also Dkt No. 350-2, Brys Decl., Ex. 1, Stango Expert Report ¶ 36 (“Mr.
Regan’s damages methodology fails to account for funds that BANA has already paid to
proposed class members, and Mr. Regan fails to investigate whether any proposed class
member remains harmed after receiving those payments from BANA.”).)  According to
BANA’s damages expert, Mr. Victor Stango reports that
 representing the total dollar amount Mr. Regan claims are owed to the
Claim Denial Class, (Dkt. No. 382-2, Brys Decl., Ex. 1, Stango Expert Report ¶ 37);
therefore, because the class members have already been fully compensated for the dollar
amounts denied by BANA, they have no damages.  (Id.)  In reply, as to treble damages,
Plaintiffs respond that damages must be trebled before any offset is applied.  (Dkt. No.
392 at 26.)
 The question raised by BANA is whether Plaintiffs are entitled to an offset from
the principal amount of actual damages or from the total amount of total damages which
may include treble or punitive damages.  An “offset should be subtracted from the total
amount of damages after trebling.  In actions like this where treble damages are available,
the plaintiff is entitled to full satisfaction of the claim for harm done. The amount
awarded as damages is then trebled as punishment to the defendant.  If the offset were
subtracted from the initial damage award, the class members would be denied the full
satisfaction of their claim.”  Van Vranken v. Atlantic Richfield Co., 699 F. Supp. 1420,
1428 (N.D. Cal. 1988) (emphasis in original); see e.g., McCall v. Four Star Music Co., 51
Cal. App. 4th 1394, 1399 (1996) (a “plaintiff is only entitled to a single recovery of full
compensatory damages for a single injury”) (emphasis in original); Uthe Tech. Corp. v.
Aetrium, Inc., 808 F.3d 755, 762 (9th Cir. 2015) (the plaintiff was not barred from
pursuing treble damages against the defendant as long as there was an offset for the sums
paid under the foreign arbitral award and pursuing treble damages does not amount to
double recover but “full satisfaction” to which the plaintiff were entitled).
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Similarly, as to punitive damages, where “a claimant’s award of compensatory
damages was completely offset, he could still receive punitive damages.”  Colaco v.
Cavotec SA, 25 Cal. App. 5th 1172, 1205 (2018) (rejecting argument that because the
offset wipes out liability for compensatory damages, the punitive damages award must be
reversed because the satisfaction of a compensatory damage award by offset does not
mean those damages were never awarded, it means the award was effectively paid).
To the extent that Plaintiffs demonstrate liability and have shown they are entitled
to treble damages and punitive damages, they will be entitled to those damages
.  The calculation of the offset to damages already paid by BANA can
be determined at trial or after.  See Peters v. Equifax Info. Servs. LLC, Case No. EDCV
12–1837–TJH (OPx), 2013 WL 12169355, at *3 (C.D. Cal. 2013) (offset issues, if any,
could be handled post-trial by the trial judge if necessary); Cheetham v. Specialized Loan
Servicing LLC, CASE NO. 2:20-CV-762-JCC-DWC, 2021 WL 2137823, at *2 (W.D.
Wash. May 26, 2021) (“[E]ven if the ‘one satisfaction rule’ does apply, offset issues can
be resolved post-trial.”).  Therefore, the Court concludes that Plaintiffs have proposed a
valid model for actual damages.
ii
Consequential Damages for the Credit Denial, Credit
Rescission, Account Freeze and EMV Chip Classes
Plaintiffs’ damages expert, Mr. Regan, proposes two methodologies to determine
consequential damages for the Claim Denial, Credit Rescission and Account Freeze
Classes.  (Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert Report ¶¶ 45-60, 85-89; 100-
07, 120.)  Plaintiffs propose that consequential damages measure the economic value of
the time class members were deprived of the use of their funds (lost “time value of
money”) or loss of access to the principal amount due to CFF-1.  (Id. ¶¶ 8, 39, 44, 52.)
BANA argues that calculating each class members’ lost time value of money will require
individual inquiries rather than a method to assess classwide damages.
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The Ninth Circuit has recognized injury in the form of “the lost time value of
money” and an award of interest as a way of measuring and remedying that injury.  Van
v. LLR Inc., 962 F.3d 1160, 1165 (9th Cir. 2020) (“Van I”); see also W. Va. v. United
States, 479 U.S. 305, 310-11 n.2 (1987) (“Prejudgment interest serves to compensate for
the loss of use of money due as damages from the time the claim accrues until judgment
is entered, thereby achieving full compensation for the injury those damages are intended
to redress.”).28
According to Mr. Regan, Methodology 1 is multiplying the principal amount of
actual damages (the total dollar amount of each claim denied, of credit rescinded and
total dollar amount when accounts were frozen) with a compound interest rate that
reflects the “time value of money . . . based on the total length of time the class members
were denied access to those funds.”  (Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert
Report ¶ 45.)  Mr. Regan applied two different interest rates.  First, he applied a 10%
interest rate, the rate applied to judgments in California.  (Id. ¶¶ 48, 49.)  But he asserts
the 10% interest rate understates the costs the cardholder would have incurred in the form
of increased borrowing through use of their credit cards, with average APRs between
17.4% to 23.5% during that time period until the amounts denied was credited.  (Id.)
Cardholders also incurred costs based on their inability to pay down existing debt.  Mr.
Regan also applied a 20% interest rate to reflect the representative APR for the lost time
value of money.  (Id. ¶ 51.)
BANA does not dispute Methodology 1, only the interest rate used; however,
which interest rates should be applied is an issue for the factfinder, not a determination to
be made at class certification.  Therefore, Methodology 1, Plaintiffs’ damages model for
assessing consequential damages for lost time value of money measures damages
28 BANA relies on Park v. Webloyalty.com, Inc., Case No.: 12cv1380-LAB (LL), 2019 WL 1227062, at
*3 (S.D. Cal. Mar. 15, 2019) arguing Plaintiffs lack standing because they have already been refunded,
(Dkt. No. 349 at 46), but that case pre-dates the ruling in Van which held that injury due to the “lost time
value of money” confers Article III standing.  Van I, 962 F.3d at 1165.
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attributable to their theory of liability and can be calculated classwide.  See Van, 962 F.3d
at 1161, 1164 (noting district court used an interest rate of 4.35% per year).
Methodology 2 is an alternative method to calculate financial harms experienced
by cardholders impacted by BANA’s use of CFF-1 and to assess the financial cost of
borrowing substitute funds, (see Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert Report
¶¶ 54-57), as well as late or overdraft fees due to BANA’s denial of their claims and their
inability to access funds, (id. ¶¶ 58-60).  Mr. Regan asserts
.  (Id. ¶ 53 & n.56.)
In rebuttal, Mr. Stango challenges Methodology 2 arguing that because
.  (Dkt No. 350-2, Brys Decl., Ex. 1, Stango Expert
Report ¶ 39.)  Mr. Stango also opines that consumer heterogeneity cannot measure
economic harm on a class-wide basis due to the varying economic circumstances of each
cardholder where the costs associated with obtaining substitute funds and credit card late
fees will depend on the financial circumstance of each EDD cardholder.  (Id. ¶¶ 45-77.)
First, the Court agrees that the Remediation Plan does not support a damages
model that satisfies Comcast.  While the Remediation Plan
 (Dkt. No.
367-6, Chan Decl., Ex. 74 at III.C.4 at 13-14 (UNDER SEAL).)
Additionally, the Court agrees with BANA that Mr. Regan’s assumptions about
class members in arriving at Methodology 2 may not be true classwide as he has not
provided any evidence in support.  In explaining this methodology, Mr. Regan stated that
EDD cardholders “tended to earn less than the median wage (i.e., were less likely to have
available savings to bridge the time until re-employment)[]”, (Dkt. No. 386-4, Chan
Decl., Ex. 4, Regan Expert Report ¶ 39); “impacted cardholders would likely have
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needed alternative funds to mitigate the inability to access their funds” and “[t]he most
likely source of credit for these consumers was increased utilization of credit cards”, (id.
¶ 54); and as to late fees, he stated “it is likely that Claim Denial class members relied on
their EDD funds to make timely payments and avoid late fees . . . As a result, it is likely
that the impacted cardholders incurred late fees during the time, (id. ¶ 58).  Based on
these statements, Mr. Regan conducts an analysis of the cost of the inability to access
impacted funds and the cost of late or overdraft fees based on the “typical consumer”.
(Id. ¶¶ 53-60.)  Mr. Regan has not supported Methodology 2 with evidence showing that
these assumptions are true as to most or even any of the EDD cardholders’ experience.
Therefore, as to Methodology 2, the Court concludes that Plaintiffs have not
demonstrates that this method measures damages across the entire class and that they
stem from BANA’s actions that created the legal liability.  See Comcast, 569 U.S. at 35.
iii.
Principal Amount of Actual Damages for Customer Service
Class
As to the Customer Service Class, Plaintiffs seek actual damages in the form of
“compensation for the value of class members’ lost time spent on hold with the Bank’s
claims call center that was greater than the reasonable wait-on-hold time by industry
standards.”  (Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert Report ¶¶ 113.)
According to Mr. Regan’s calculations, damages can be calculated from BANA’s records
showing
.  (Id. ¶ 114; see also Dkt. No.
393-1, Chan Decl., Ex. 3, Minnucci Expert Report ¶¶ 12, 94-100 (UNDER SEAL).)
BANA first argues that the customer service theory of liability is legally invalid
because damages are not recoverable for lost time relying on Kleef v. Goodman Mgf. Co.,
L.P., CASE NO. 4:15CV00176 BSM, 2015 WL 4512200, at *3 (E.D. Ark. July 24,
2015).  In Kleef, the plaintiff purchased air condition units and HVAC equipment that he
alleged were defective.  Id. at *1.  He sought damages, inter alia, for the lost time he
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spent coordinating and waiting for repairs which the court rejected explaining consumers
could bring a lawsuit every time they were on hold with a company's customer service
line while they waited to resolve a problem.  Id. at *3.  “Thus, to say that damages for
lost time are recoverable in a products liability action makes no sense, and it is not
commercially practicable.”  Id.
However, in this case, the Customer Service Class seeks relief under negligence
and breach of the implied covenant of good faith and fair dealing which provide for
liability and damages distinct from a products liability case.  See e.g., Conte v. Wyeth,
Inc., 168 Cal. App. 4th 89, 101 (2008) (“Negligence and strict products liability are
separate and distinct bases for liability that do not automatically collapse into each other .
. . .”).  The Customer Service Class alleges that BANA breached a duty to provide
effective customer service and to process and investigate claims in a timely manner and
the reduced call center staffing impaired their rights under the EDD Debit Card Account
Agreement.  Further, the damages sought in this case is not just time lost but an excessive
amount of lost time.  See Stasi v. Immediata Health Grp. Corp., 501 F. Supp. 3d 898,
916-18 (S.D. Cal. 2020) (lost time spent making sure she did not become further
victimized due to data breach of medial information stated plausible lost time damages
for negligence); Dieffenbach v. Barnes & Nobles, Inc., 887 F.3d 826, 828 (7th Cir. 2018)
(plaintiffs suffered injuries “because the data theft may have led them to pay money for
credit-monitoring services, because unauthorized withdrawals from their accounts cause a
loss (the time value of money) even when banks later restore the principal, and because
the value of one's own time needed to set things straight is a loss from an opportunity-
cost perspective.”); In re Solara Med. Supplies, LLC Customer Data Sec. Breach Litig,
613 F. Supp. 3d 1284, 1296 (S.D. Cal 2020) (increased time spent monitoring one's credit
and other tasks associated with responding to a data breach have been found by others
courts to be specific, concrete, and non-speculative).
Here, Mr. Regan asserts that actual damages for the Customer Service Class will
measure the “value of class members’ lost time spent on hold with the Bank’s Claims call
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center that was greater than the reasonable wait-on-hold time by industry standards.”
(Dkt. No. 386-4, Chan Decl., Ex. 4, Regan Expert Report ¶ 113.)  He relied on Plaintiffs’
Claims call center expert, Mr. Jay Minnucci, finding that the ASA of the Bank’s Claims
call center yielded an average excess hold time of
 minutes per call.  (Id. ¶ 114;
(Dkt. No. 393-1, Chan Decl., Ex. 3, Minnucci Expert Report ¶ 12 (UNDER SEAL).)
BANA’s records show
.  Therefore, Regan proposed that
 is a method to
calculate the total value of class members’ lost time.  (Dkt. No. 386-4, Chan Decl., Ex. 4,
Regan Expert Report ¶ 114.)
Next, BANA challenges the equation proposed by Mr. Regan to use the “average
excess” time multiplied by the “applicable minimum wage—or other reasonable metric”
arguing it does not represent the “actual” value of “lost time” to any individual with
varying backgrounds and fails to define “other reasonable metric”.  (Dkt. No. 349 at 49;
see also Dkt No. 350-2, Brys Decl., Ex. 1, Stango Expert Report ¶¶ 97-105.)  As
discussed above on negligence, the Court concluded that Plaintiffs’ use of statistical
evidence, the average excess hold time, was permissible at this stage.  Next, Mr. Regan’s
proposal to use the applicable minimum wage provides a metric to calculate the actual
damages for the Customer Service Class which can be applied classwide.  However,
“other reasonable metric” is not currently defined but “precise [data] is unnecessary for
class certification” because “the question is only whether [plaintiff] has presented a
workable method.”  See Lambert v. Nutraceutical Corp., 870 F.3d 1170, 1183 (9th Cir.
2017), rev'd and remanded on other grounds by 586 U.S. 188 (2019) (“Although
Lambert did not present evidence of the actual average retail price, he did present
evidence of both unit sales and the suggested retail price over the relevant time period.
There may well be additional evidence that Lambert could present at trial to support an
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average retail price.”).   The Court concludes that at this stage, predominance has been
satisfied as to actual damages on the issues raised by the Customer Service Class.
b.
Treble and Statutory Damages
Plaintiffs argue common questions predominate on whether they are entitled to
treble damages for the Claim Denial and Credit Rescission Classes under the EFTA
which can be calculated by simple arithmetic.  (Dkt. No. 324-1 at 52; see Dkt. No. 386-4,
Chan Decl., Ex. 4, Regan Expert Report ¶¶ 76, 90.)  As to statutory damages, Plaintiffs
argue that common issue predominate for statutory damages on behalf of the Claim
Denial and Credit Rescission classes under the EFTA and the EMV Chip class under the
CCPA.  (Id.)  The EFTA provides for statutory damages of up to $500,000 in a class
action and the CCPA provides for damages of $100 to $750 per violation per consumer,
or actual damages, whichever is greater.  Cal. Civ. Code § 1798.150(a).  Both are
formulaic and can be calculated using BANA’s records.  (Dkt. No. 386-4, Chan Decl.,
Ex. 4, Regan Expert Report ¶¶ 77, 91, 121.)   BANA does not dispute that treble and
statutory damages are susceptible to being measured across the entire class.  Thus,
because Plaintiffs’ treble damages and statutory damages methodology measure damages
attributable to BANA’s conduct and can be formulaically calculated using Defendant’s
records, predominance has been met.
c.
Punitive Damages
Plaintiffs maintain they are entitled to punitive damages for their due process,
breach of fiduciary duty and breach of implied covenant of good faith and fair dealing
claims.  (Dkt. No. 324-1 at 53 & n.23.)  Defendant argues that entitlement to punitive
damages turns on class members’ actual damages so BANA is entitled to individualized
determinations of each putative class members’ eligibility.  (Dkt. No. 349 at 41-42.)
Punitive damages may be awarded under § 1983 action “when the defendant's
conduct is shown to be motivated by evil motive or intent, or when it involves reckless or
callous indifference to the federally protected rights of others.”  Smith v. Wade, 461 U.S.
30, 56 (1983).  Punitive damages are also allowable for the breach of fiduciary duty and
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breach of the implied covenant of good faith and fair dealing.  See Cal. Civ. Code §
3294(a) (“In an action for the breach of an obligation not arising from contract, where it
is proven by clear and convincing evidence that the defendant has been guilty of
oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover
damages for the sake of example and by way of punishing the defendant.”).
Because the Court concluded that actual damages can be assessed on a classwide
basis, punitive damages can also be calculated on a classwide basis.  Moreover, punitive
damages typically can be assessed classwide because punitive damages focuses on the
defendant’s conduct and state of mind and not any individual conduct of class members.
See Ellis v. Costco Wholesale Corp., 285 F.R.D. 492, 543 (N.D. Cal. 2012) (citing Ellis v.
Costco Wholesale Corp., 657 F.3d 970, 987 (9th Cir. 2011) (punitive damages claims “do
not require an individual determination”); Doe v. Mindgeek USA Inc., 702 F. Supp. 3d
937, 951 (C.D. Cal. 2023) (punitive damages do not bar  predominance because “[t]he
availability of punitive damages here ‘hinges, not on facts unique to each class member,
but on the defendant's conduct toward the class as a whole.’”) (quoting Opperman v.
Path, Inc., Case No. 13-cv-00453-JST, 2016 WL 3844326, at *16 (N.D. Cal. July 15,
2016)).  BANA has not shown that the determination on punitive damages will defeat
predominance.
d.
Restitution under UCL
Plaintiffs pursue restitution under the UCL’s unfair prong as an alternative to their
legal claims for damages.  (Dkt. No. 324-1 at 54.)  BANA does not challenge the
alternative equitable damages of restitution under the UCL.  (See Dkt. No. 349.)
Plaintiffs seek restitution in the form of “(1) money in which class members have a
vested ownership interest but which the Bank wrongfully withheld from class members
(i.e., the amount of the denied claims, rescinded credits, and frozen funds), . . . (2)
prejudgment interest of 7% per annum for the periods the Bank wrongfully withheld from
class members the money attributable to denied claims, rescinded credits, and frozen
accounts . . . and (3) restitutionary disgorgement of the float revenue the Bank earned on
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wrongfully withheld funds.”  (Dkt. No. 324-1 at 54.)  They claim that calculations can be
based on BANA’s records.
Restitution is “compelling a UCL defendant to return money obtained through an
unfair business practice to those persons in interest from whom the property was taken,
that is, to persons who had an ownership interest in the property or those claiming
through that person.”  Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134,
1149 (2003) (quotation marks and citation omitted).  The purpose of restitution “is to
restore the status quo by returning to the plaintiff funds in which he or she has an
ownership interest.”  Id.
The Court concludes that Plaintiffs have shown that restitution based on BANA’s
alleged liability can be calculated on a classwide basis using Defendant’s records.  (Dkt.
No. 386-4, Chan Decl., Ex. 4, Regan Expert Report ¶¶ 37 78-79, 83, 98.)
e.
Disgorgement
Plaintiffs seek disgorgement of BANA’s unjustly earned profits as to its breach of
fiduciary duty, breach of the implied covenant of good faith and fair dealing and
negligence causes of action.  (Dkt. No. 324-1 at 55.)  According to Plaintiffs, BANA
earned profits on funds on deposit and amounts it wrongfully withheld from Plaintiffs
and putative class members as well as profits in the form of avoided costs by
intentionally understaffing its Claim call centers and issuing debit cards without EMV
chips.  (Id.)  Calculation of avoided costs is readily ascertainable from the Bank’s own
records and does not depend on any individualized inquiries.  (See Dkt. No. 386-4, Chan
Decl., Ex. 4, Regan Expert Report ¶¶ 79, 92, 109, 116, 122; Dkt. No. 393-1, Chan Decl.,
Ex. 3 (Minnucci Rep.) ¶¶ 94-100 (UNDER SEAL).)  BANA does not dispute Plaintiffs’
damages model for disgorgement.  (See Dkt. No. 349.)  Accordingly, the Court concludes
that Plaintiffs’ disgorgement damages model satisfies predominance.
9.
Superiority Under Rule 23(b)(3)
Under Rule 23(b)(3), the plaintiff must also demonstrate “that a class action is
superior to other available methods for fairly and efficiently adjudicating the
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controversy.”  Fed. R. Civ. P. 23(b)(3).  Superiority requires a consideration of “(A) the
class members' interests in individually controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the controversy already
begun by or against class members; (C) the desirability or undesirability of concentrating
the litigation in the particular forum; and (D) the likely difficulties in managing a class
action.”  Fed. R. Civ. P. 23(b)(3)(a)-(d); Zinser v. Accufix Research Inst., Inc., 253 F.3d
1180 (9th Cir. 2001).
Plaintiffs maintain that the class action is superior to proceeding individually
because BANA engaged in uniform policies and practices discussed above and classwide
adjudication will achieve “economies of time, effort and expense” and promote
“uniformity of decisions as to persons similarly situated.”  (Dkt. No. 324-1 at 55.)
Specifically, they contend that class members’ interest in pursuing and controlling their
own litigation is reduced where the questions of law and fact are common.  (Id. at 56.)
Second, they have identified more than 100,000 EDD cardholders impacted by BANA’s
uniform policies and the only related litigation are the Individual Plaintiffs who have
filed cases in this MDL and these cases are currently stayed pending the Class Plaintiffs’
claims.  (Id.)  Third, the high cost of pursuing claims against BANA outweighs any
potential recovery in an individual case.  (Id.)  Finally, Plaintiffs assert the likely
difficulties in maintaining a class action is not outweighed by the benefits of considering
common issues in one action.  (Id. at 57.)  BANA solely disputes the second factor
arguing that this action is not superior to the Consent Decrees with the CFBP and OCC
because
 under the Remediation Plan.
(Dkt. No. 349 at 52-53.)
The existence of a prior consent decree is relevant to the superiority question.
Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1314 (9th Cir. 1977) (citing Kamm v.
Cal. City Dev. Co., 509 F.2d 205 (9th Cir. 1975)).  In Doninger, the court noted the
consent decree was similar “in scope” as the class action litigation and “[p]rior similar
litigation is often the critical factor in denying (b)(3) certification.”  Id. at 1314.  In
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Doninger, the plaintiffs were 31 females suing the defendant for sex discrimination in the
workplace under Title VII and the Equal Pay Act seeking injunctive relief and backpay
awards as remedies.  Id. at 1306.  The defendant had entered into a consent decree with
the Equal Employment Opportunity Commission (“EEOC”) in the United States District
Court for the Eastern District of Pennsylvania and resolved issues against AT&T and 22
operating entities arising from alleged violations of the Fair Labor Standards Act, Title
VII of the Civil Rights Act of 1964, and the Equal Employment Opportunity Act.  Id. at
1306-07.  The consent decree provided for back payments and directed “implementation
of affirmative action programs to prevent discrimination in employment, including
setting goals and timetables for the programs covering transfers, promotions, layoffs,
recalls, employee information, testing, promotion pay, hiring of female college graduates
directly into management, and pay rate adjustments.”  Id. at 1306-07.  Individuals who
opted to avail themselves to the remedies under the consent decree had to sign a waiver,
release, and covenant not to sue defendants regarding any claims for violations of any
federal or state fair employment practice law or regulation.  Id. at 1307.  At class
certification, the defendant argued that class treatment was not appropriate because many
individuals had accepted the benefits available, and waived their right to bring suit, and
would be precluded from seeking certain remedies sought by individuals.  Id.  The Ninth
Circuit held that the district court did not abuse its discretion in denying class
certification based on superiority because the consent decree was “similar in scope” and
“the effect of the consent decree would be drastically to reduce and fragment the potential
class.”  Id. at 1314.
Similarly, in Kamm, the district court held that the class action was “not superior to
other available methods for the fair and efficient adjudication of the controversy . . .
especially in light of the proceedings already brought by the California Attorney General
and Real Estate Commissioner . . . the relationship of these proceedings to the facts and
posture of this particular case.”  Kamm, 509 F.2d at 209.  In Kamm, per the settlement
between the Attorney General and Real Estate Commissioner and the defendant, those
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that accepted the settlement offer also executed a release “from instituting action against
the defendants or otherwise seeking recovery for any alleged damage.”  Id. at 208.
Therefore, the Ninth Circuit held the district court did not err in dismissing the class
action based on superiority.  Id. at 213.
In contrast, in B.P. v. Balwani, No. 20-15974, No. 20-15976, 2021 WL 4077008, at
*2 (9th Cir. Sept. 8, 2021), the Ninth Circuit held that the district court did not abuse its
discretion in concluding that superiority had not been defeated because it concluded “that
the Arizona Consent Decree ‘did not comprehend the full scope of damages that might be
available,’ and that it did not include a battery or medical battery claim.’”  Id. at *2.  The
court also noted that Plaintiffs’ California statutory claims were also unaffected by the
Arizona Consent Decree.”  Id.
Similarly, in this case, the CFBP and OCC Consent Decrees, while they provided
compensatory damages to EDD cardholders, they carved out a provision preserving class
members’ rights to pursue additional remedies.  (See e.g., Dkt. No. 324-75, Chan Decl.,
Ex. 72, CFBP Consent Decree ¶ 98.)  Further, unlike the plaintiffs in Doninger and
Kamm, EDD cardholders subject to the Remediation Plan
.  Therefore, BANA’s argument on
superiority is not convincing and not legally supported.  Accordingly, the Court
concludes Plaintiffs have demonstrated that this class action is “superior to other
available methods for fairly and efficiently adjudicating the controversy.”  See Fed. R.
Civ. P. 23(b)(3).
Conclusion
Based on the reasoning above, the Court GRANTS Plaintiffs’ motion for class
certification and CERTIFIES the following five classes:
1
Claim Denial Class: All Bank of America EDD cardholders who
notified the Bank that an unauthorized transaction had occurred on their
Bank of America EDD debit card account (“Claim”) at an automated teller
machine (“ATM”), and whose Claim the Bank denied or closed at any time
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from September 28, 2020 through June 8, 2021, based solely on Indicator 1
of the Bank’s Claim Fraud Filter (“CFF”).
2
Credit Rescission Class: All Bank of America EDD cardholders who
received permanent credit from the Bank in connection with their Claim,
which credit the Bank rescinded at any time from September 28, 2020
through June 8, 2021, based solely on Indicator 1 of the Bank’s CFF.
3
Account Freeze Class: All Bank of America EDD cardholders whose
EDD debit card account (“Account”) the Bank froze at any time from
September 28, 2020 through March 17, 2021, based solely on Indicator 1 of
the Bank’s CFF, and whose Account the Bank (i) subsequently unfroze, or
(ii) subsequently converted from frozen to blocked status on or after March
18, 2021 and then unblocked.
4
Customer Service Class: All members of the Claim Denial class
and/or the Credit Rescission class who telephoned the Bank’s customer
service telephone number for its EDD cardholders at any time from
September 13, 2020 through November 21, 2020, and whose telephone call
was routed to the Bank’s Claims call center.
5
EMV Chip Class: All members of the Claim Denial class and/or
Credit Rescission class whose EDD debit card did not include an EMV chip
prior to June 9, 2021.  Excluded are EDD cardholders who reported not
having the card in their possession at the time of the unauthorized
transaction or who never received their card, including those who reported a
lost or stolen card.
Excluded from each class is any person whom the Bank has determined,
pursuant to its Remediation Plan with the United States Consumer Financial
Protection Bureau (CFPB) and Office of the Comptroller of the Currency
(OCC), “(i) has been disqualified by the [S]tate [of California] from
Program29 eligibility; (ii) has previously engaged in fraudulent Program
conduct, such as submission of fraudulent claims or other abuses of the
claims process; or (iii) has had their card frozen due to legal order processes,
as a result of Internal/Vendor fraud investigations, or by Global Financial
Crimes Compliance.”  Also excluded from each class is any person whose
Claim or Account the Bank closed, in whole or in part, because the State of
California requested the Bank to close that person’s Claim or Account.
29 Program refers to Defendant’s “Unemployment Benefits Prepaid Card Program.”  Dkt. No. 367-6,
Chan Decl., Ex. 74 at 3 (UNDER SEAL).)
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The Court also appoints Plaintiffs Koole, McClure, Moon, Oosthuizen, Rivera,
Willrich, and Yuan as class representatives for the Claim Denial class; the appointment of
Plaintiffs Chong and Moore as class representatives for the Credit Rescission class; the
appointment of Plaintiffs Chong, Koole, McClure, Moon, Moore, Rivera, and Yuan as
class representatives for the Account Freeze class; the appointment of Plaintiffs Chong,
Moon, Moore, Oosthuizen, Willrich, and Yuan as class representatives for the Customer
Service class; and the appointment of Plaintiffs Chong, Koole, McClure, Moon, Moore,
Oosthuizen, Rivera, Willrich, and Yuan as class representatives for the EMV Chip class.
Finally, the Court appoints Cotchett Pitre & McCarthy LLP and Altshuler Berzon LLP to
serve a co-lead class counsel.
Rule 23 provides that for any class certified under Rule 23(b)(3), “the court must
direct to class members the best notice that is practicable under the circumstances,
including individual notice to all members who can be identified through reasonable
effort.”  Fed. R. Civ. P. 23(c)(2)(B).  The parties shall meet and confer regarding the form
of a proposed notice pursuant to Rule 23(c)(2)(B) and shall submit a stipulation or a joint
update describing the parties’ positions within thirty days of this Order.
IT IS SO ORDERED.
Dated:  June 16, 2025
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