Plaintiffs' Opposition to Motion to Stay — In re Bank of America California Unemployment Benefits Litigation

Summary

In In re Bank of America California Unemployment Benefits Litigation, Case No. 3:21-md-02992-GPC-MSB in the Southern District of California before Judge Gonzalo P. Curiel, plaintiffs oppose Bank of America's motion to stay the litigation (Document 427, filed 02/21/25, redacted public version). They say that after a January 17, 2025 hearing on class certification and a lengthy tentative ruling, the Bank sought to halt all proceedings pending the Supreme Court's decision in Laboratory Corp. of America Holdings v. Davis. Plaintiffs, represented by Cotchett, Pitre & McCarthy, LLP and Altshuler Berzon LLP, call the request speculative, say settled Ninth Circuit law controls, and argue the Bank has shown no evidence of fraudsters among about 109,000 putative class members under the Electronic Fund Transfer Act.

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PLAINTIFFS’ OPPOSITION TO MOTION TO STAY LITIGATION
Case No.: 3:21-md-02992-GPC-MSB

JOSEPH W. COTCHETT (SBN 36324)
jcotchett@cpmlegal.com
BRIAN DANITZ (SBN 247403)
bdanitz@cpmlegal.com
KARIN B. SWOPE (Pro Hac Vice)
kswope@cpmlegal.com
VASTI S. MONTIEL (SBN 346409)
vmontiel@cpmlegal.com
COTCHETT, PITRE & McCARTHY, LLP
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Fax: (650) 697-0577
MICHAEL RUBIN (SBN 80618)
mrubin@altber.com
STACEY M. LEYTON (SBN 203827)
sleyton@altber.com
CONNIE K. CHAN (SBN 284230)
cchan@altber.com
CAROLINE HUNSICKER (SBN 356917)
chunsicker@altber.com
ALTSHULER BERZON LLP
177 Post Street, Suite 300
San Francisco, CA 94108
Telephone: (415) 421-7151
Fax: (415) 362-8064

Co-Lead Counsel for Plaintiffs and the Proposed Class

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

IN
RE
BANK
OF
AMERICA
CALIFORNIA
UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 3:21-md-02992-GPC-MSB

PLAINTIFFS’ MEMORANDUM
OF POINTS AND AUTHORITIES
IN OPPOSITION TO
DEFENDANT’S MOTION TO
STAY LITIGATION

This document relates to All Actions

Judge:   Hon. Gonzalo P. Curiel
Ctrm:    2D – 2nd Floor
Date:     March 28, 2025
Time:    1:30 PM

REDACTED PUBLIC VERSION

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PLAINTIFFS’ OPPOSITION TO MOTION TO STAY LITIGATION
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TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................... 1
II. FACTUAL AND PROCEDURAL BACKGROUND ........................................... 2
A. Class Certification ............................................................................................. 2
B. Case Schedule .................................................................................................... 4
III. ARGUMENT ......................................................................................................... 5
A. Legal Standard ................................................................................................... 5
B. The Stay Should Be Denied ............................................................................... 5
1. The Bank has not shown that a stay is likely to result in
simplifying the issues before this Court ........................................................ 5
2. A stay will prejudice class members, while the Bank will
suffer only the routine costs of litigation if the case proceeds .................... 11
IV.CONCLUSION .................................................................................................... 14
CERTIFICATE OF SERVICE .................................................................................. 16

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TABLE OF AUTHORITIES

Page(s)
Cases
Appel v. Bos. Nat'l Title Agency, LLC,
No. 18-cv-873-BAS-MDD, 2019 WL 1923934
(S.D. Cal. Apr. 30, 2019) ...................................................................................... 14
Behar v. Northrup Grumman Corp.,
No. 2:21-cv-03946-HDV-SK, 2024 WL 5275027
(C.D. Cal. Dec. 3, 2024) ....................................................................................... 12
Burns v. First Am. Bank,
No. 04-cv-7682, 2006 WL 3754820 (N.D. Ill. 2006) ............................................ 9
Campbell v. Pricewaterhouse Coopers, LLP,
No. cv-S-06-2376, 2008 WL 2345035 (E.D. Cal. June 5, 2008) ......................... 12
Carey v. Piphus,
435 U.S. 247 (1978) ............................................................................................. 10
D.C. by & through Garter v. County of San Diego,
No. 15-cv-1868-MMA (NLS), 2017 WL 1365693
(S.D. Cal. Apr. 14, 2017) ...................................................................................... 11
Doe #1 v. City of San Diego,
No. 17-cv-1581-BAS-WVG, 2019 WL 3068235
(S.D. Cal. July 12, 2019) ...................................................................................... 14
Dowkin v. City & County of Honolulu,
No. cv-10-00087, 2014 WL 4904952 (D. Haw. Sept. 30, 2014) ................... 11, 12
Fernandez v. CoreLogic Credco, LLC,
No. 3:20-cv-1262-JM-(AGS), 2021 WL 1311270
(S.D. Cal. Apr. 8, 2021) ........................................................................................ 13
Frantz v. Force Factor, LLC,
No. 20-cv-1012-MMA (KSC), 2020 WL 8666386
(S.D. Cal. Nov. 16, 2020) ..................................................................................... 12
Halliburton Co. v. Erica P. John Fund, Inc.,
573 U.S. 258 (2014) ............................................................................................. 13
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Healthcare Ally Mgmt. of Cal., LLC v. Stroock & Stroock & Lavan LLP,
No. cv-22-4829-MWF(RAOX), 2023 WL 5667565
(C.D. Cal. July 11, 2023) ........................................................................................ 6
Lab’y Corp. of America Holdings v. Davis,
Sup. Ct. Case No. 24-0304 ............................................................................ passim
Landis v. N. Am. Co.,
299 U.S. 248 (1936) ................................................................................... 5, 11, 14
Leyva v. Certified Grocers of Cal., Ltd.,
593 F.2d 857 (9th Cir. 1979) ...................................................................... 5, 11, 13
Lockyer v. Mirant Corp.,
398 F.3d 1098 (9th Cir. 2005) ...................................................................... 5, 6, 14
Ludlow v. Flowers Foods, Inc.,
No. 18-cv-1190 JLS (JLB), 2020 WL 773253

(S.D. Cal. Feb. 18, 2020) ...................................................................................... 13
Mendez v. Optio Sols., LLC,
239 F.Supp.3d 1229 (S.D. Cal. 2017) .............................................................. 5, 14
Merisier v. Bank of Am., N.A.,
688 F.3d 1203 (11th Cir. 2012) ............................................................................ 10
In re Morning Song Bird Food Litig.,
320 F.R.D. 540 (S.D. Cal. 2017) ...................................................................... 8, 14
Nguyen v. Marketsource, Inc.,
No. 17-cv-02063-AJB-JLB, 2018 WL 2182633
(S.D. Cal. May 11, 2018) ..................................................................................... 12
Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC,
31 F.4th 651 (9th Cir. 2022) (en banc) ............................................................... 3, 7
Reed v. Autonation, Inc.,
No. cv-16-08916-BRO, 2017 WL 10592157 (C.D. Cal. Mar. 6, 2017) .............. 12
Ruiz Torres v. Mercer Canyons Inc.,
835 F.3d 1125 (9th Cir. 2016) ................................................................................ 7
Torrent v. Ollivier,
No. cv-15-02511 DDP, 2015 WL 6394468 (C.D. Cal. Oct. 22, 2015) .................. 7
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TransUnion LLC v. Ramirez,
594 U.S. 413 (2021) ............................................................................................. 13
Wolf v. Carpenter Hazlewood Delgado & Bolen LLP,
No. cv-20-00957-PHX-DLR, 2021 WL 487889 (D. Ariz. Feb. 10, 2021) ............ 7
Yong v. I.N.S.,
208 F.3d 1116 (9th Cir. 2000) .......................................................................... 7, 13
Statutes
15 U.S.C. §1693g(b) .............................................................................................. 1, 10

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PLAINTIFFS’ OPPOSITION TO MOTION TO STAY LITIGATION
Case No.: 3:21-md-02992-GPC-MSB

I.
INTRODUCTION

On January 17, 2025, the Court conducted an hour-long hearing on Plaintiffs’
motion for class certification, after having circulated a thorough 96-page tentative
ruling. ECF 408. Before the Court could issue its formal order, though, the Bank
requested a stay of “all proceedings in this case, including the issuance of any order
on class certification,” first through a Notice of Supplemental Authority, ECF 409,
and then through this motion, ECF 415 at 1. The Bank rests this sweeping stay request
on its speculative assertion that the Supreme Court’s grant of certiorari in Laboratory
Corp. of America Holdings v. Davis, Sup. Ct. Case No. 24-0304 (“LabCorp”), will
result in such a material change in existing law governing class certification under
Rule 23(b)(3) that it would be a waste of judicial resources to allow this four-year-old
litigation to continue pending the Supreme Court’s decision.
The Bank’s effort to further delay resolution of the state and federal law claims
of the Plaintiffs and 109,000 putative class members fails at every level. The Bank’s
conjecture about what the Supreme Court might rule in LabCorp and how that ruling
might affect the appropriateness of class certification is pure guesswork, and a remand
for further consideration in LabCorp could leave the underlying issues unresolved for
another year or more. Unless and until the Supreme Court holds otherwise, the long-
settled law of this circuit is controlling. That law strongly supports Plaintiffs’ class
certification motion for the reasons this Court has tentatively recognized.
Even if the Supreme Court were to reverse the Ninth Circuit’s decision in
LabCorp, the facts and issues in that case are readily distinguishable from those here.
As the Court observed at the hearing, (1) the Bank (which bears the burden of proof
under the Electronic Fund Transfer Act (“EFTA”), 15 U.S.C. §1693g(b)) has not
presented evidence of fraudsters lurking undetected amongst the approximately
109,000 individuals identified from the Bank’s records as putative class members,
even after four years of reconsideration, fraud investigation, and remediation efforts;
and (2) in any event, individuals determined by the State or the Bank to be fraudsters
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are by definition excluded from the proposed classes. See 1/17/25 Hr’g Tr. 19:15-
20:2, 21:4-22. Because there has been no showing that the proposed classes include
individuals who lack Article III injury and, because in any event, any such individual
would be definitionally excluded from the proposed classes, LabCorp should not
affect the appropriateness of class certification in this case.
Just as important, a motion for a stay of litigation implicates the equitable
authority of the Court, and the Bank has failed to present any evidence of hardship if
this litigation were to proceed (other than the ordinary costs of litigation, which for
the next several months will principally be expert witness costs that would be required
whether the class were certified or not). In contrast, Plaintiffs and putative class
members would be enormously prejudiced by further delay, as many have been
waiting since the Fall of 2020 to be fully compensated as the law requires for the
Bank’s EFTA, CCPA, UCL, due process, and common law violations.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A.
Class Certification
Plaintiffs seek certification of five classes of unemployed Californians, based
on the Bank’s wrongful use of its Claim Fraud Filter Indicator 1 (“CFF-1”) to
summarily deny every unauthorized-ATM withdrawal claim by class members from
late September 2020 until the Bank’s challenged conduct was enjoined in early June
2021. ECF 324-1 at 2-4. As Plaintiffs have demonstrated, the Bank uniformly applied
the same policies and practices to all members of the narrowly defined classes,
depriving them of several state and federal statutory and common law rights. Id. at 1.
Unable to dispute its common application of the challenged policies, the Bank
principally opposed Rule 23(b)(3) certification on predominance grounds, insisting
(without proof) that the proposed classes were teeming with criminals and that
extensive, individualized inquiries would be required at trial to identify which class
members, due to their supposed criminal activities, suffered no actual harm as a result
of the Bank’s concededly classwide implementation of its automated CFF-1 as the
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basis for denying claims instead of conducting the required good faith investigation.
ECF 349 at 34-37.1 The Bank argued that its right to conduct these inquiries at trial
would defeat predominance, and that it expected to uncover an untold number of such
criminals through further investigations. See id. at 34-36. As the Court pointed out at
the hearing, though, the proposed class definitions expressly exclude individuals
determined by the State or by the Bank to be fraudsters, and the Bank failed to present
any evidence in its voluminous opposition to class certification that such criminals
were hidden within the class; and even though the Bank asserted it had found

individuals whose claims could not be validated, Plaintiffs demonstrated—without
contradiction—that the Bank had not shown that how many, if any, of those
individuals were actual class members. Id. at 1-2; 1/17/25 Hr’g Tr. 10:15-11:5. Nor
did the Bank present evidence that anyone beyond these
 individuals presented
any indicia of fraud. Moreover, even if the Bank had some basis for contending that
a handful of class members suffered no legal injury, but see ECF 324-1 at 2; infra at
9-11 (noting distinction between legal injury and cognizable damages), controlling
Ninth Circuit law does not preclude “certification of a class that potentially includes
more than a de minimis number of uninjured class members.” Olean Wholesale
Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 669 (9th Cir. 2022) (en
banc); ECF 324-1 at 19-20.

1 The Bank also argued that those who “disputed their own transactions by honest
mistake” lacked Article III standing, ECF 349 at 35; ECF 415-1 at 2, but as Plaintiffs
explained on reply, even those who suffered no monetary damages as a result of the
Bank’s wrongful denial of their claims based on CFF-1 still suffered a legal injury of
their EFTA and due process rights, see, e.g., ECF 378 at 4 n.3 (citing cases); and those
who are members of the Customer Service class also suffered damages as a result of
the Bank’s extraordinarily long call center wait times, see id. at 21. Equally meritless
is the Bank’s argument that those “already compensated for their potential injuries”
lack Article III standing, ECF 349 at 35; ECF 415-1 at 2, as it is well established that
reimbursement of actual damages does not moot claims for punitive and treble
damages. See, e.g., ECF 378 at 18 (citing cases).
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B.
Case Schedule
This litigation brought by unemployed Californians against Bank of America
has been pending since January 2021. In June 2021, Judge Chhabria entered a
preliminary injunction enjoining the Bank’s continued use of its Claim Fraud Filter
to decision class members’ unauthorized-transaction claims and requiring the Bank
to reopen those claims, recognizing that “[t]he class is comprised of people who
depend on unemployment benefits to get through the pandemic,” “continued denial
of these benefits will seriously hinder the ability of many class members to feed their
families and keep a roof over their heads,” “[t]he harm being suffered by the class
members is irreparable,” and “[t]he balance of hardships and the public interest almost
certainly support some form of preliminary injunctive relief.” ECF 324-73 at 2-3;
ECF 324-74. However, the pleadings were not settled in this MDL until August 15,
2024, when the Bank finally filed its Answer and Affirmative Defenses to Plaintiffs’
Second Amended Master Consolidated Complaint. ECF 316.2
The current case schedule will enable this Court to resolve the remaining issues
in this case in less than a year, consistent with the goals it expressed at the class
certification hearing. See 1/17/25 Hr’g Tr. 51:24-52:3; 54:5-7 (“Given that this is a
2021 case, I’m eager to move this forward as quickly… as is prudent.”). That schedule
sets deadlines for initial expert disclosures (March 4, 2025), rebuttal expert
disclosures (March 28, 2025), expert discovery (April 25, 2025), and pretrial motions
(May 28, 2025). ECF 417. Summary judgment motions, which both sides indicated
they are likely to file this Spring, 1/17/25 Hr’g Tr. 55:1-6, may resolve all or
significant portions of this case within the next several months.
//

2 After the hearing on the Motion for Class Certification, Plaintiffs filed a Third
Amended Master Consolidated Complaint (“TAMCC”), ECF 406, and on February
7, 2025, Defendant filed a supplemental answer to respond to the few additions in
the TAMCC. ECF 414.
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III.
ARGUMENT
A. Legal Standard
Courts should only grant a stay of litigation pending the outcome of another
proceeding “in rare circumstances,” Landis v. N. Am. Co., 299 U.S. 248, 255 (1936),
and only when resolution of the other matter will have a “direct impact” on the issues
presented. Mendez v. Optio Sols., LLC, 239 F.Supp.3d 1229, 1232 (S.D. Cal. 2017);
Landis, 299 U.S. at 255 (holding “[o]nly in rare circumstances will a litigant in one
cause be compelled to stand aside while a litigant in another settles the rule of law
that will define the rights of both”). Such a stay should only be granted if the other
proceedings will conclude within a “reasonable time in relation to the urgency of the
claims presented.” Mendez, 239 F.Supp.3d at 1232 (citing Leyva v. Certified Grocers
of Cal., Ltd., 593 F.2d 857, 864 (9th Cir. 1979)). Other factors that may be considered
include: (1) the possible damage resulting from granting a stay; (2) the hardship or
inequity the moving party will suffer if the case proceeds; and (3) the degree to which
issues or questions of law may be simplified or complicated as the result of a stay.
Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citing Landis, 299 U.S.
at 256-57; CMAX, Inc v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)); Mendez, 239
F.Supp.3d at 1232. The moving party bears the heavy burden of establishing the
necessity for a stay. Landis, 299 U.S. at 255.
B. The Stay Should Be Denied.
1. The Bank has not shown that a stay is likely to result in
simplifying the issues before this Court.
The Bank argues that the Supreme Court’s decision in LabCorp could resolve
an important issue in this case, ECF 415-1 at 6, yet the Bank offers no reasoned
analysis to support its assertion that the Supreme Court will overturn existing Ninth
Circuit law. Nor does the Bank explain how its hoped-for result in LabCorp would
affect this Court’s class certification ruling, given the different factual record and legal
arguments in these cases. As the moving party, the Bank has the affirmative burden
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to demonstrate, as a threshold matter, that this case and LabCorp are factually and
legally similar in all material respects, and that the anticipated end-of-Term decision
in LabCorp is “likely” to “dispose of” any overlapping claims in this Court.
Healthcare Ally Mgmt. of Cal., LLC v. Stroock & Stroock & Lavan LLP, No. cv-22-
4829-MWF(RAOX), 2023 WL 5667565, at *4 (C.D. Cal. July 11, 2023) (denying
stay where “the facts [of the case at issue] [were] distinguishable from [the other
proceeding]” and defendant failed to show the appeal in the other proceeding would
be decided in its favor); Lockyer, 398 F.3d at 1113 (denying stay where other
proceeding was “unlikely to decide, or to contribute to the decision of, the factual and
legal issues before the district court”). The Bank has not met and cannot meet its
burden as to either point.
First, the Bank has nothing but speculation to support its assertion that the
Supreme Court’s ruling in LabCorp—a case that has not been argued and as to which
not a single merits brief has been filed—would require this Court to decide the
“predominance” prong of Rule 23(b)(3) differently than current Ninth Circuit law
requires. All the Bank can point to is the grant of certiorari itself, coupled with
conjecture about what the Court “may” “give guidance on” in deciding the case. ECF
415-1 at 7. As the briefs filed in support of, and opposition to, certiorari demonstrate,
there is a range of possible outcomes in LabCorp, including many that unquestionably
would not have any impact here. For example, the Court could confirm the
longstanding principle that Article III is satisfied in a class action if a single plaintiff
has standing at the outset of the case, Respondents’ Brief in Opposition (“BIO”) at 3,
or could confirm, on the record presented, that the class definition in LabCorp (or a
modified class definition that the plaintiffs in that case could propose on remand)
would be sufficient to satisfy Article III concerns. BIO at 9. Further, the Supreme
Court could agree with the Ninth Circuit in Olean and other cases that LabCorp’s
arguments do not implicate Article III at all, only Rule 23(b)(3) predominance, and
that district courts continue to have considerable discretion in determining in the first
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instance whether individualized questions about class member “injury” will likely
predominate. BIO at 24-25. The Court could also adopt a de minimis rule, with or
without providing specific guidance for determining how many or what percentage of
class members constitute a de minimis number, or in which factual contexts a
defendant’s inquiry at trial into non-injured class members begins to predominate over
common, classwide inquiries.
Mere speculation about how LabCorp may be decided is inadequate
justification to shut down this litigation. See, e.g., Torrent v. Ollivier, No. cv-15-
02511 DDP (JPRx), 2015 WL 6394468, at *2 (C.D. Cal. Oct. 22, 2015) (denying stay
where defendant failed to counter possibility that appellate “holding may well be
limited” and “not… particularly instructive in this case”; although appellate court
“might conceivably issue a ruling that would affect this case, the chances of such an
outcome are too speculative at this stage to warrant [a] stay”). In the meantime, Ninth
Circuit cases such as Olean and Ruiz Torres v. Mercer Canyons Inc., 835 F.3d 1125
(9th Cir. 2016), remain the law and are controlling. It is well established that “once a
federal circuit court issues a decision, the district courts within that circuit are bound
to follow it and have no authority to await a ruling by the Supreme Court before
applying the circuit court’s decision as binding authority.” Yong v. I.N.S., 208 F.3d
1116, 1119 n.2 (9th Cir. 2000).
Second, even if LabCorp were to overturn Olean in whole or in part, this case
is readily distinguishable from LabCorp and certification would still be proper under
Rule 23(b)(3). See, e.g., Wolf v. Carpenter Hazlewood Delgado & Bolen LLP, No.
cv-20-00957-PHX-DLR, 2021 WL 487889, at *2 (D. Ariz. Feb. 10, 2021) (holding
“[t]he [c]ourt merely finds that the allegations in this case are sufficiently
distinguishable from the facts in Ramirez that the Supreme Court’s forthcoming
decision, even if favorable to TransUnion, will not meaningfully impact this
litigation”).
In LabCorp, the plaintiffs sought to certify a damages class of “[a]ll legally
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blind individuals who visited a LabCorp patient service center with a LabCorp
Express Self-Service kiosk in California during the applicable limitations period and
who, due to their disability, were unable to use the LabCorp Express Self-Service
kiosk.” Petition for a Writ of Certiorari (“Pet. Cert.”) at 8 (quoting Pet.App.63a). The
defined class included individuals who did not want to use a kiosk, whom defendant
argued did not suffer a cognizable injury under the ADA and other applicable statutes.
Id.; see Petitioner’s Reply to Brief in Opposition (“Reply to BIO”) at 8. Here, by
contrast, the proposed classes have been narrowly defined to exclude anyone who “(i)
has been disqualified by the [S]tate [of California] from Program eligibility” or whom
the Bank has determined “(ii) has previously engaged in fraudulent Program conduct,
such as submission of fraudulent claims or other abuses of the claims process.” ECF
386-1 at 2; see 1/17/25 Hr’g Tr. 21:18-22. This definition—coupled with the Bank’s
nearly four-year investigation into class member eligibility, as mandated by the June
2021 preliminary injunction and the July 2022 Consent Order, see infra at 9—
eliminates any realistic possibility that individualized inquiries into class member
injury will predominate at trial. As another court in this District recognized when
facing similar circumstances in an earlier case, such factual differences weigh in favor
of the conclusion that “any ruling is unlikely to alter the [c]ourt’s analysis.” In re
Morning Song Bird Food Litig., 320 F.R.D. 540, 545 (S.D. Cal. 2017) (denying
motion to stay pending Supreme Court review of certification of a different class
including “numerous class members [who] suffered no injury,” where the class
definition at issue was limited “to only those who purchased the tainted wild bird
food, and therefore suffered an injury” and thus distinguishable).
A decision in LabCorp that specifies the percentage of uninjured class members
permissible under a Rule 23(b)(3) predominance analysis, or that explains when
evidence that must be presented at trial is sufficient to overcome predominance, could
not affect certification here. After all, the Bank has not presented any evidence of
actual uninjured class members let alone that any significant amount of trial time
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should be devoted to the Bank’s efforts to identify such individuals. The record in
LabCorp was very different, as LabCorp presented “[u]nrebutted record evidence
show[ing] that nearly one-fourth of all LabCorp PSC [Patient Service Center] visitors
prefer to check in at the front desk; and another tenth preferred to do so online,” Pet.
Cert. at 9, and the only way to determine class member preference would be to
examine each of them at trial. In stark contrast, the Bank here has not only failed to
present
 of criminal class members, but it has not presented evidence
that any such individuals remain to be discovered or that any trial time (in contrast to
its own, unilateral, pre-trial investigative time) would be required to identify them.
See 1/17/25 Hr’g Tr. 11:2-5; 21:8-18.
The Bank has had considerable, legally mandated opportunities since June
2021 to identify any class members who were not damaged by the Bank’s wrongful
conduct, including (in addition to its own reconsideration process) the preliminary
injunction in Yick and the CFPB/OCC Remediation Plan, pursuant to which the Bank

 1/17/25 Hr’g Tr. 42:3-43:12. The Bank has not presented
any evidence that any of the class members present any indicia of fraud, let alone that
such issues would predominate at trial. The Bank’s four-year investigation, coupled
with the express exclusion of fraudsters from the class definitions, make the factual
record in this case far different from LabCorp, where defendant contends that, short
of individual examination at trial, it would be impossible to determine which class
members would have chosen to use accessible kiosks had they been provided.
Third, it bears repeating that in this case, unlike in LabCorp, Plaintiffs’
statutory and constitutional claims raise procedural rights, under which concrete harm
arises from liability the moment the Bank violates those rights. See ECF 378 at 4 n.3
(citing Bisbey v. D.C. Nat’l Bank, 793 F.2d 315, 318 (D.C. Cir. 1986) (bank liable
under EFTA although plaintiff suffered no damages); Burns v. First Am. Bank, No.
04-cv-7682, 2006 WL 3754820, at *6, 9 (N.D. Ill. 2006) (certifying EFTA statutory
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damages class because “[e]ach class member’s claim requires proof only that EFTA
was violated”); Cobb v. PayLease LLC, 34 F.Supp.3d 976, 984 (D. Minn. 2014)
(allowing EFTA claim to proceed despite reimbursement)); see also Merisier v. Bank
of Am., N.A., 688 F.3d 1203, 1210 n.10, 1211 (11th Cir. 2012) (confirming Bank’s
duty to follow error resolution procedures under Regulation E, even though it was
determined at trial that plaintiff submitted a fraudulent claim); Carey v. Piphus, 435
U.S. 247, 266 (1978) (holding “by making the deprivation of [due process] rights
actionable for nominal damages without proof of actual injury, the law recognizes the
importance to organized society that those rights be scrupulously observed”). Another
material distinction is that EFTA creates a presumption of claim validity and places
the burden on the Bank to prove with evidence that the consumer in fact authorized
the transaction. See 15 U.S.C. §1693g(b); 1/17/25 Hr’g Tr. 19:15-20:2, 21:4-22
(“Plaintiff’s burden is to establish that the elements [] exist which would not include
identifying people who aren’t entitled to some remedies, … that falls on the defense
either by virtue of the statute placing the burden on the defense, or to the extent that
it’s part of an affirmative defense …. [P]laintiffs offer a prima facie case.”). Even
under the standard articulated by the petitioner in LabCorp, Plaintiffs have met their
burden of showing classwide legal “injury” under their theory of liability. Reply to
BIO at 11 (acknowledging “[a]t [the class certification] stage, a plaintiff’s burden is
threefold. At minimum, it must (i) define the class in a way that does not include those
lacking an Article III injury; (ii) plausibly establish that all class members have been
so harmed; and (iii) show that they can prove, through common evidence, that all
class members were in fact injured by the at-issue conduct”). The Bank does not
dispute that every class member was subject to the same Bank policies and practices,
which means that, if Plaintiffs’ theory of liability is accepted, each class member
suffered an injury upon the alleged violations of their EFTA rights to a reasonable
and timely investigation and written findings and their due process rights to adequate
notice and opportunity to be heard. See ECF 386-2 at 20-25; ECF 378 at 3-9; 1/17/25
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Hr’g Tr. at 43:23-44:9. No ruling in LabCorp will call into question this basic
premise; concrete injury here is liability, and Plaintiffs have met their burden at class
certification to show that liability as to all class members can be established with
common evidence.
2. A stay will prejudice class members, while the Bank will suffer
only the routine costs of litigation if the case proceeds.
Equitable factors also weigh against a stay, as most members of the putative
classes have already been waiting more than four years for complete relief. The Bank
argues that Plaintiffs cannot show prejudice because the proposed stay is likely to
extend only to late June 2025 and would only delay monetary, not prospective, relief.
ECF 415-1 at 9. As a threshold matter, no merits briefs in LabCorp have been filed
and no argument date has been set for this Term or next; nor is there any way to predict
what the Supreme Court will rule in LabCorp or whether the Court’s ruling would
require a remand to the Ninth Circuit for further proceedings that would greatly extend
the delay before a definitive ruling is announced. Moreover, even stays of a few
months “should not be granted unless it appears likely the other proceedings will be
concluded within a reasonable time in relation to the urgency of the claims presented
to the court.” Leyva, 593 F.2d at 864 (emphasis added). While delay of monetary relief
may not “on its own” justify denying a stay, “it does not follow that a delay in
monetary recovery… does not constitute even some damage to Plaintiff and putative
class members.” D.C. by & through Garter v. County of San Diego, No. 15-cv-1868-
MMA (NLS), 2017 WL 1365693, at *4 (S.D. Cal. Apr. 14, 2017) (emphasis added)
(denying stay where “contact information for putative class members continues to
become outdated with time … [t]his could potentially result in denial of monetary
recovery to those class members”).3 The Bank’s requested stay would have significant

3 Courts in the Ninth Circuit have interpreted Landis to permit consideration of harm
caused by delayed monetary relief. See, e.g., Dowkin v. City & County of Honolulu,
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impacts on the case schedule, delaying class certification, dispositive motions, and
trial for a substantial and potentially indefinite period of time. After more than four
years of litigation, the 109,000 members of the proposed classes will be severely
prejudiced by having such further delay injected into the proceedings, as witness
memories continue to fade and the ability to reach class members to inform them of
their class action rights diminishes with each passing month. See, e.g., Behar v.
Northrup Grumman Corp., No. 2:21-cv-03946-HDV-SK, 2024 WL 5275027, at *1
(C.D. Cal. Dec. 3, 2024) (denying stay where case already pending for four years,
citing “need for class members to receive clear and prompt notice of the … issues
raised in this action”); Dowkin, 2014 WL 4904952, at *6 (denying stay where
“[p]laintiffs filed this action over four-and-a-half years ago,” and asking them to wait
longer “to resolve their claims and potentially obtain redress for their injuries is
unreasonable”); Campbell v. Pricewaterhouse Coopers, LLP, No. cv-S-06-2376
LKK/GGH, 2008 WL 2345035, at *2 (E.D. Cal. June 5, 2008) (denying stay of class
notice despite potential that pending proceeding could impact certification because
“any benefit gained by staying class notice must be weighed against the prejudice to
plaintiffs in delaying the prosecution of their case”).
The proposed delay is particularly unreasonable because of class members’

No. cv-10-00087 LEK-RLP, 2014 WL 4904952, at *6 (D. Haw. Sept. 30, 2014)
(holding “[t]he fact that [p]laintiffs are not seeking injunctive relief does not negate
[p]laintiffs’ interest in obtaining relief within a reasonable time”); Reed v. Autonation,
Inc., No. cv-16-08916-BRO (AGRx), 2017 WL 10592157, at *3 (C.D. Cal. Mar. 6,
2017) (similar). The type of relief sought is not determinative; the Bank’s cases
confirm that the moving party must still assert a greater hardship if the stay is denied.
Nguyen v. Marketsource, Inc., No. 17-cv-02063-AJB-JLB, 2018 WL 2182633, at *6
(S.D. Cal. May 11, 2018) (granting stay to protect defendant from deprivation of
Federal Arbitration Act rights while awaiting decision on class waiver law); Frantz v.
Force Factor, LLC, No. 20-cv-1012-MMA (KSC), 2020 WL 8666386, at *4 (S.D.
Cal. Nov. 16, 2020) (granting stay to prevent defendant from answering bulk of its
discovery obligations while awaiting other proceeding).
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economic vulnerabilities and the length of time their claims have been pending.4 In
Leyva, the Ninth Circuit directed the district court to weigh the length of delay against
circumstances indicating urgency of claims, such as the “statutory right to minimum
compensation” and “congressional policy favoring prompt payment of wages.” 593
F.2d at 864. The statutory, constitutional, and common law rights here are just as
important.5

While further delaying relief will cause enormous hardship to class members,
the only impact to the Bank of denying the stay are the costs of litigation—which as
a practical matter, will mostly focus in the next few months on expert discovery,
which would be required even if this MDL litigation proceeded on behalf of hundreds

4 The Bank claims the stay is for a “definite” period, ECF 415-1 at 9, but of course,
that assumes the LabCorp ruling would provide definitive guidance and not simply
remand to the Ninth Circuit for further consideration—as the Supreme Court often
does. See, e.g., TransUnion LLC v. Ramirez, 594 U.S. 413, 418 (2021) (remanding);
Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 284 (2014) (same); Tyson
Foods, 577 U.S. at 462 (same). If that occurs, it could take years before the applicable
standards are finally resolved. Cf. Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000)
(vacating stay that “could remain in effect for a lengthy period of time, perhaps for
years if our decision in Ma is reversed and the case is remanded for further
proceedings”). The Bank’s other case on this point is distinguishable, since Plaintiffs
here have already faced significant delay. See Fernandez v. CoreLogic Credco, LLC,
No. 3:20-cv-1262-JM-(AGS), 2021 WL 1311270, at *1 (S.D. Cal. Apr. 8, 2021)
(granting stay pending Supreme Court review of a related question where class
complaint had only been pending for approximately six months, not several years).
5 The Bank cites Ludlow v. Flowers Foods, Inc., No. 18-cv-1190 JLS (JLB), 2020
WL 773253 (S.D. Cal. Feb. 18, 2020), for the proposition that “[m]ere delay” in treble
damages does not constitute harm. ECF 415-1 at 9. But plaintiffs in Ludlow did not
demonstrate the same urgency of relief as is established by this case. 2020 WL
773253, at *2 (noting “the fact that Plaintiffs have not moved for a preliminary
injunction to stop the alleged harm and did not file their case for several years after
the alleged harm began lessens the [c]ourt’s concerns…”). Here, claims were brought
shortly after CFF-1 was implemented, and Plaintiffs sought and obtained a
preliminary injunction in June 2021, demonstrating severity and urgency of harm
reduction. ECF 324-74; see supra at 4.
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of individual plaintiffs rather than five certified classes. Moreover, “being required to
defend a suit, without more, does not constitute a ‘clear case of hardship or inequity’
within the meaning of Landis.” Lockyer, 398 F.3d at 1112; see also Mendez, 239
F.Supp.3d at 1234-35 (denying stay where defendant only identified hardship of
engaging in additional litigation); Doe #1 v. City of San Diego, No. 17-cv-1581-BAS-
WVG, 2019 WL 3068235, at *2 (S.D. Cal. July 12, 2019) (same). The Bank raises
the possibility that it may have to re-brief issues after LabCorp, ECF 415-1 at 6, but
that bears no weight in the hardship analysis. Appel v. Bos. Nat'l Title Agency, LLC,
No. 18-cv-873-BAS-MDD, 2019 WL 1923934, at *2 (S.D. Cal. Apr. 30, 2019)
(denying motion to stay where “pointing to inevitable discovery and motion practice,
even if there is a possibility some of the litigation may be unnecessary,” did not satisfy
defendant’s burden to show hardship).

In the unlikely event that LabCorp affects this Court’s class certification ruling,
Rule 23(c)(1)(C) already allows orders to be “altered or amended” any time before
judgment. Judicial economy is better served in this already four-year-old litigation by
proceeding under current Ninth Circuit law and, if necessary, filing supplemental
pleadings after LabCorp. See In re Morning Song Bird Food Litig., 320 F.R.D. at 545-
56 (recognizing a district court “retains discretion to revisit class certification
throughout the legal proceedings and may rescind, modify, or amend the class
certification in light of subsequent developments”).
IV.
CONCLUSION

The Bank has failed to meet its heavy burden of demonstrating that this is one
of those rare cases in which plaintiffs should have justice delayed while another
proceeding runs its course. There is no evidence to indicate LabCorp is likely to
change the outcome of this Court’s class certification decision, nor is there any other
reason to ignore controlling Ninth Circuit law in the meantime. The Bank has also
failed to show any hardship justifying extending for an indefinite period this
consolidated MDL action, which has been pending for more than four years, whereas
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a stay would prejudice Plaintiffs and putative class members. Class certification has
been fully briefed and argued before this Court. Judicial economy would not be
furthered by delaying the Court’s ruling. For the foregoing reasons, the stay should
be denied.
Respectfully submitted,
Dated: February 21, 2025
COTCHETT, PITRE & McCARTHY, LLP

By: /s/ Brian Danitz

JOSEPH W. COTCHETT
BRIAN DANITZ
KARIN B. SWOPE
VASTI S. MONTIEL

Dated: February 21, 2025
ALTSHULER BERZON LLP
By: /s/  Michael Rubin

MICHAEL RUBIN
STACEY M. LEYTON
CONNIE K. CHAN
KATHERINE G. BASS
COLIN C. JONES
CAROLINE HUNSICKER

Co-Lead Counsel for Plaintiffs and the
Proposed Class
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the clerk of the
court for the United States District Court for the Southern District of California by
using the CM/ECF system on February 21, 2025. I further certify that all participants
in the case are registered CM/ECF users and that service will be accomplished by the
CM/ECF system. I certify under penalty of perjury that the foregoing is true and
correct.

Executed: February 21, 2025

/s/   Michael Rubin

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