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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 DENYING DEFENDANT’S
MOTION TO STAY PENDING
RULING ON RULE 23(F) PETITION
[Dkt. No. 513.]
Before the Court is Defendant’s motion to stay the proceedings pending resolution
of its Rule1 23(f) petition for permission to appeal the Court’s order granting Class
Plaintiffs’ motion for class certification. (Dkt. No. 513.) An opposition was filed by
Class Plaintiffs on July 31, 2025, and a reply was filed by Defendant on August 8, 2025.
(Dkt. Nos. 529, 541.) Based on the reasoning below, the Court DENIES Defendant’s
motion to stay proceedings pending resolution of the Rule 23(f) petition.
Background
This multidistrict litigation (“MDL”) arises from several class actions (“Class
Plaintiffs”) and a large number of individual actions (“Individual Plaintiffs”) brought
against Defendant Bank of America, N.A. (“BANA”) over its administration of the
1 Federal Rule of Civil Procedure
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electronic benefits payment system for California’s Employment Development
Department (“EDD”) during the COVID-19 pandemic. (See Dkt. No. 304, Second
Amended Master Consolidated Complaint (“SAMCC”).) EDD, the administrator of
unemployment benefits in California, entered into an exclusive contract with BANA, to
distribute those benefits through Bank-issued and Bank-administered prepaid debit cards
which are linked to individual Bank depository accounts. (Id. ¶¶ 1, 2, 39.)
Class and Individual Plaintiffs, like other millions of Californians, lost their jobs
during the COVID-19 pandemic and were found eligible by EDD for unemployment and
other public benefits. (Id. ¶ 1.) The state’s unemployment rate skyrocketed from 3.9% in
January 2020 to 16.4% in April 2020 following Governor Gavin Newsom’s closure
orders. (Id. ¶ 74.) Since the start of the COVID-19 pandemic in March 2020, EDD
received at least 18.5 million claims for various unemployment benefits. (Id. ¶ 75.) For
example, in the first week of December 2020, EDD received 341,813 claims which was a
600% increase from December 2019. (Id.) Per the exclusive contract between EDD and
BANA, BANA issued benefit payments to individuals found eligible for unemployment
benefits through more than 9 million Bank-issued and Bank-administered prepaid debit
cards. (Id. ¶ 2.) These pre-paid debit cards were subject to rampant third-party fraud
during the COVID-19 pandemic and tens of millions of dollars have been stolen from
these bank accounts. (Id. ¶¶ 76-78.) All Plaintiffs similarly claim that BANA did not
safeguard and properly manage benefits during the pandemic and unlawfully froze or
denied access to unemployment funds in their debit card accounts.
After full briefing of Class Plaintiffs’ motion for class certification, (Dkt. Nos. 324,
349, 378), the Court held a hearing on January 17, 2025. (Dkt. No. 405.) Shortly
thereafter, on February 7, 2025, Defendant filed a motion to stay pending the United
States Supreme Court review of Lab’y Corp. of Am. Holdings v. Davis, No. 24-0304.
(Dkt. No. 415.) On March 28, 2025, the Court granted in part a stay of the case pending
the United States Supreme Court review. Recognizing there is a circuit split on the issues
of “1) whether Article III bars certification of a proposed Rule 23(b)(3) class that
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contains uninjured members; and 2) whether Rule 23(b)(3) bars certification of a
proposed class with an appreciable number of uninjured members”, (Dkt. No. 448 at 5-
62), the Court granted a stay “because the Supreme Court will be addressing the identical
issues raised in this case, [and] a decision will likely inform on the proper standard to
apply.” (Id. at 6-7.)
However, on June 5, 2025, the Supreme Court dismissed the case as
“improvidently granted.” Lab’y Corp. of Am. Holdings v. Davis, 605 U.S. 327, 327
(2025). As such, on the same day, the Court lifted the stay and confirmed that the case of
Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods LLC, 31 F. 4th 651
(2024) remains binding. (Dkt. No. 492 at 1-2.)
On June 24, 2025, the Court granted Class Plaintiffs’ motion for class certification,
appointed class representatives as well as co-lead class counsel.3 (Dkt. No. 499.) On
July 1, 2025, Defendant filed a petition for permission to appeal pursuant to Federal Rule
of Civil Procedure (“Rule”) 23(f) asking the Ninth Circuit to address “[w]hether this
Court should review a class-certification grant that puts hundreds of millions of dollar at
stake and allows criminals to share in a class recovery without proposing any mechanism
from removing these ineligible plaintiffs from the class.” (Dkt. No. 510; Dkt. No. 513-1
at 6.) Two days later, on July 3, 2025, Defendant filed a motion to stay pending
resolution of Rule 23(f) petition and the motion is fully briefed. (Dkt. Nos. 513, 529,
541.)
Discussion
Rule 23(f) permits a party to petition the court of appeals for permission to
immediately appeal a grant or denial of class certification and provides that “[a]n appeal
does not stay proceedings in the district court unless the district judge or the court of
appeals so orders.” Fed. R. Civ. P. 23(f). A federal district court possesses the inherent
2 Page numbers are based on the CM/ECF pagination.
3 The sealed order was filed by the Court on June 16, 2025. (Dkt. No. 494 (UNDER SEAL).)
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power to “control the disposition of the causes on its docket with economy of time and
effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254
(1936).
Because the Ninth Circuit has not ruled on what stay standard applies to a stay
pending a ruling of a Rule 23(f) petition, district courts have applied either the
Nken4/Hilton5 standard or the Landis standard. See Romero v. Securus Techs., Inc., 383
F. Supp. 3d 1069, 1072-73 (S.D. Cal. 2019) (“The Ninth Circuit has not articulated a
specific standard for evaluating a proposed stay pending decision of a Rule 23(f)
appeal.”). It is recognized that the majority of district courts in this circuit apply the
Nken/Hilton standard on a motion for a stay pending a decision of a Rule 23(f) petition.
Romero, 383 F. Supp. 3d at 1073; Evans v. Wal-Mart Stores, Inc., Case No. CV 17-
07641-AB (KK), 2019 WL 7169794, at * 2 (C.D. Cal. Oct. 23, 2019). The Nken/Hilton
standard considers “(1) whether the stay applicant has made a strong showing that he is
likely to succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556
U.S 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). It is also
acknowledged that a minority of courts apply the Landis stay standard. Romero, 383 F.
Supp. 3d at 1073 n.1. The Landis stay considers “[1] the possible damage which may
result from the granting of a stay, [2] the hardship or inequity which a party may suffer in
being required to go forward, and [3] the orderly course of justice measured in terms of
the simplifying or complicating of issues, proof, and questions of law which could be
expected to result from a stay.” Lockyer v. Mirant Corp., 398 F.3d 1098, 1110 (9th Cir.
2005) (citing CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962)).
4 Nken v. Holder, 556 U.S. 418 (2009).
5 Hilton v. Braunskill, 481 U.S. 770 (1987).
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Defendant applies both the Landis and the Nken standard in support of its motion
for a stay. (Dkt. No. 513-1 at 11-17.) Class Plaintiffs argue that the Nken standard
applies because the majority of the courts apply it. (Dkt. No. 529 at 11 & n. 1.)
However, both agree that the result would be the same under both standards. (Dkt. No.
513-1 at 13-14; Dkt. No. 529 at 11 n. 1.)
After careful review of the caselaw, the Court agrees with the reasoning of the
minority view that apply Landis to a stay pending a Rule 23(f) petition because
Defendant seeks a stay of the court proceedings during an interlocutory appeal and not a
stay of a court’s final order or judgment. The Nken and Hilton test applies “only when a
party seeks the stay of execution of a judgment or order that modifies the status quo
pending the resolution of the correctness of that order or judgment by the appellate
court.” Romero, 383 F. Supp. 3d at 1073 n.1 (citations omitted); Kuang v. U.S. Dep’t of
Defense, Case No. 18-cv-03698-JST, 2019 WL 1597495, at *3 (N.D. Cal. Apr. 15, 2019)
(Nken standard “is applicable when there is a request to stay a district court's judgment or
order pending an appeal of the same case”) (collecting cases). In Hilton, the Supreme
Court addressed a stay pending appeal of a district court order granting a writ of habeas
corpus and asserted that the stay factors it applied are ones “traditionally considered in
deciding whether to stay a judgment in a civil case.” Hilton, 481 U.S. at 777. In Nken,
the Supreme Court applied the traditional stay factors of Hilton to an alien’s removal
pending appeal. Nken, 556 U.S. at 436. In both Hilton and Nken, the moving party was
seeking to stay the judgments or orders of the court rather than a stay of the proceedings.
On the other hand, Landis involved “the power of a court to stay proceedings in one suit
until the decision of another,” 299 U.S. at 249, or “pending resolution of independent
proceedings which bear upon the case.” Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d
857, 863 (9th Cir. 1979). However, in Kuang, the district court noted that courts have
overwhelmingly concluded that the Landis test applies to a request “to stay proceedings,
regardless whether the stay is based on a direct appeal or an independent case.” Kuang,
2019 WL 1597495, at *3 (applying Landis to request for stay pending interlocutory
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appeal of court’s preliminary injunction); Peck v. Cnty. of San Diego, 528 F. Supp. 3d
1100, 1105 (C.D. Cal. 2021) (applying Landis to a stay pending interlocutory appeal).
Further, the cases cited by Class Plaintiffs to support the Nken standard merely
applied the standard and did not explain why it applied the standard in Nken rather than
the Landis stay standard. (See Dkt. No. 529 at 11-12); see also Kuang, 2019 WL
1597495, at *2 (“Critically, none of these decisions discussed the Landis test or offered a
reasoned analysis as to why the Nken test applied.”); Andrade Rico v. Beard, No. 2:17-
cv-1402 KJM DB P, 2019 WL 4127206, at *6 (E.D. Cal. Aug. 30, 2019) (noting courts
applying Nken/Hilton do so without analysis).
A Rule 23(f) petition seeking permission to appeal an order on a class certification
order is an interlocutory appeal and not a final judgment. Microsoft Corp. v. Baker, 582
U.S. 23, (2017) (“Rule 23(f) authorizes ‘permissive interlocutory appeal’ from adverse
class-certification orders in the discretion of the court of appeal[s.]”). Therefore, because
Defendant seeks a stay of the proceedings and is seeking an interlocutory appeal, the
more appropriate standard to apply is Landis, and not Nken, which is reserved for a stay
of a judgment pending appeal. See Flores v. Bennett, 675 F. Supp. 3d 1052, 1057 (E.D.
Cal. 2023) (“Because the district courts that have addressed both tests have consistently
applied Nken only to stays of judgments and Landis to stays of proceedings, the Court
uses the Nken factors to evaluate Defendants’ request to stay enforcement of the
preliminary injunction and relies on the Landis test to evaluate the request to stay the
proceedings pending the interlocutory appeal.”).
A.
Landis Stay
A Landis stay requires an evaluation of the following factors:
[1] the possible damage which may result from the granting of a stay, [2] the
hardship or inequity which a party may suffer in being required to go
forward, and [3] the orderly course of justice measured in terms of the
simplifying or complicating of issues, proof, and questions of law which
could be expected to result from a stay.
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Lockyer v. Mirant, 398 F.3d 1098, 1110 (9th Cir. 2005) (quoting CMAX, Inc. v. Hall, 300
F.2d 265, 268 (9th Cir. 1962)). The party requesting a stay bears the burden of showing
that the circumstances justify an exercise of that discretion. Clinton v. Jones, 520 U.S.
681, 708 (1997). A district court has discretion whether to grant or deny a Landis stay.
See Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 (9th
Cir. 2007).
1.
Balance of Hardships
The hardships raised by both parties mirror the arguments raised in the prior
motion for a stay filed by Defendant. (See Dkt. Nos. 415, 427.) Defendant argues that
both parties will suffer hardship if a stay is not granted because they may be required to
engage in duplicative and unnecessary motion practice based on the Ninth Circuit’s
decision. (Dkt. No. 513-1 at 13.) Class Plaintiffs argue that a stay would prejudice both
them and the class members because as time passes, class members’ contact information
will become outdated and unlocatable and there is a likelihood that witness memories
may fade or become unavailable by the time of trial. (Dkt. No. 529 at 25, 28-9)
On this factor, “[i]f there is even a fair possibility that the stay . . . will work
damage to someone else,” the party seeking the stay “must make out a clear case of
hardship or inequity.” Landis, 299 U.S. at 255 (internal quotation marks omitted).
Courts “are generally unwilling to presume delay is harmful without specific supporting
evidence.” Aliphcom v. Fitbit, Inc., 154 F. Supp. 3d 933, 938 (N.D. Cal. Dec. 30, 2015).
A general claim of harm due to a delay in litigation is not sufficient. See id.
In the prior stay order, the Court concluded that the balance of hardships weighed
slightly in favor of Defendant because a decision by the Supreme Court resolving a
circuit split would impact the Rule 23(b)(3) analysis potentially causing unnecessary
motion practice and preparing for trial. (Dkt. No. 448 at 8-9.) However, on the Rule
23(f) petition, the Ninth Circuit will be looking at its own settled precedent. As such, any
generalized harm in the form of litigation costs does not constitute hardship in being
required to move forward in this more than four-year old case. See Lockyer v. Mirant
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Corp., 398 F.3d 1098, 1112 (9th Cir. 2005) (“being required to defend suit, without more,
does not constitute a ‘clear case of hardship or inequity’ within the meaning of Landis.”)
On the other hand, in the prior order, the Court noted that a short three-month stay would
not impose any hardships on Class Plaintiffs. (Dkt. No. 448 at 8.) But, at this time, the
Court recognizes that the case is over four years old, the case was already stayed pending
Supreme Court review of Davis, and the Individual Plaintiffs’ cases have all been stayed
pending a ruling on the class certification motion. Notwithstanding any ruling on the
Rule 23(f) petition, the case will still need to proceed on the merits as it relates to the
Individual Plaintiffs. Further, a stay will only exacerbate the hardships on Class
Plaintiffs and Individual Plaintiffs in the form of witness memories’ fading, Bank
witnesses leaving Defendant’s employ, and likelihood that class members’ contact
information will become stale. Therefore, the Court concludes that the balance of
hardships tips in favor of Class Plaintiffs and against a stay.
2.
Judicial Economy and the Orderly Course of Justice
Next, the Court considers “the orderly course of justice measured in terms of the
simplifying or complicating of issues, proof, and questions of law which could be
expected to result from a stay.” Landis, 299 U.S. at 255.
Defendant argues that the orderly administration of justice supports a stay where a
stay would simplify the issues and avoid unnecessary time and resources on dispositive
and Daubert motions in the event the Ninth Circuit holds that class certification is not
appropriate. (Dkt. No. 513-1 at 13.) In support, Defendant relies on the Court’s order
granting a stay pending the Supreme Court’s review of the Davis case. But at that time,
the Supreme Court was considering a circuit split on the questions of “whether all
members of a proposed class must have Article III standing at class certification and/or
what standard to apply to assess predominance when there are an ‘appreciable’ number of
uninjured class members.” (Dkt. No. 448 at 7.) Ultimately, the Supreme Court did not
answer these questions and ruled that the petition for writ of certiorari was improvidently
granted. See Lab’y Corp., 605 U.S. at 327.
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At this time, Defendant’s request for a stay involves an interlocutory appeal with
the Ninth Circuit and will not be addressing a split of authority but the application of its
own precedent. Relying on Olean and Van v. LLR, Inc., 61 F.4th 1053 (9th Cir. 2023),
the Court concluded that Plaintiff had demonstrated that common issues will predominate
under Rule 23(b)(3) and Defendant had failed to respond with evidence that individual
issues will predominate. (See Dkt. No. 499.) Further, due to the age of the case, and
Class Plaintiffs’ interest in having their day in court, the orderly course of justice and
judicial economy does not support a stay at this stage.
In conclusion, considering the Landis factors, the Court concludes that a stay is not
warranted and DENIES Defendant’s motion to stay the case pending its Rule 23(f)
petition.
Conclusion
Based on the reasoning above, the Court DENIES Defendant’s motion to stay the
proceedings pending its Rule 23(f) petition. The hearing set on September 16, 2025 shall
be vacated.
IT IS SO ORDERED.
Dated: August 15, 2025
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