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BANA’S MOTION TO SEAL RE EAST
CASE NO. 21-MD-02992-GPC-MSB
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JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street, NW
Washington, DC 20036
Tel.: +1 202 346 4000
Fax: +1 202 346 4444
Attorneys for Defendant
BANK OF AMERICA, N.A.
[ADDITIONAL COUNSEL LISTED IN SIGNATURE BLOCK]
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA
SAN DIEGO DIVISION
IN RE: BANK OF AMERICA
CALIFORNIA UNEMPLOYMENT
BENEFITS LITIGATION
Case No. 21-MD-02992-GPC-MSB
DEFENDANT BANK OF
AMERICA, N.A.’S NOTICE AND
MOTION TO SEAL DOCUMENTS
FILED IN SUPPORT OF ITS
MOTION TO EXCLUDE THE
EXPERT TESTIMONY OF
CHLOE N. EAST
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
GOODWIN PROCTER LLP
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PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
Defendant Bank of America, N.A. (BANA) hereby submits this Notice and Motion
to Seal (the Motion to Seal) certain documents and portions of other documents
submitted in connection with BANA’s Motion to Exclude the Expert Opinions of
Chloe N. East (the Motion to Exclude).1
I.
STANDARD TO SEAL DOCUMENTS
The public’s right to inspect and copy judicial records is not absolute, and a
party faced with the disclosure of confidential or proprietary information may seek
to file the documents under seal to avoid disclosure of business information that
might result in competitive harm or be used for improper purposes. See Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 598 (1978) (denying disclosure); Local Civ.
R. 79.2(c). The documents that BANA seeks to seal each contain information that
qualifies as “Protected Material” pursuant to the Parties’ Stipulated Protective Order
(Protective Order), entered by the Court on September 24, 2021 (ECF 82).
Courts in this district have held that a party seeking to seal documents filed in
connection with a motion to exclude expert testimony must show “compelling
reasons” to seal, as such motions may be effectively “dispositive of a motion for
summary judgment.” Lust ex rel. Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 597
(9th Cir. 1996) (noting that Daubert ruling was dispositive); see Rink v. Cheminova,
Inc., 400 F.3d 1286, 1288 (11th Cir. 2005) (affirming a grant of summary judgment
on grounds that plaintiff failed to prove causation after the plaintiff's expert was
excluded under Daubert).
In applying the “compelling reasons” standard, courts, including this Court,
1 This Motion is based on Defendant’s Notice of Motion and Motion to Seal, the
documents filed in support of Defendant’s Motion to Exclude, including the
Declaration of Lindsay E. Hoyle (Hoyle Decl.) submitted herewith, all pleadings and
papers on file in this action, oral argument if requested by the Court, and any such
other matters that the Court deems appropriate. Should the Court desire more
detailed briefing to decide Defendant’s Motion to Seal, BANA respectfully requests
the opportunity to submit additional briefing in support of sealing.
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consistently seal documents where—as here—disclosure of the confidential business
information risks competitive harm to the litigant or improper use of the information
such as to commit fraud. E.g., E.W. Bank v. Shanker, 2021 WL 3112452, at *18–19
(N.D. Cal. July 22, 2021) (finding compelling reasons to seal confidential onboarding
processes, verification of customer identities, and fraud prevention measures); Soria
v. U.S. Bank N.A., 2019 WL 8167925, at *4 (C.D. Cal. Apr. 25, 2019) (finding
compelling reasons to seal internal fraud investigation procedures because there was
a “significant danger that someone could improperly use this information to commit
fraud and avoid detection.”); see also ECF 266, 293, 365, 381, 390, 391, 397, 421,
466, 467, 548 (the “Sealing Orders”).
II.
COMPELLING REASONS EXIST TO SEAL THE CONFIDENTIAL
DOCUMENTS.
Compelling reasons exist to file under seal each of the confidential documents
(or portions thereof) filed in connection with BANA’s Motion to Exclude, and any
substantive discussion of those documents contained in BANA’s Motion to Exclude
or the declarations or testimony filed in support thereof. Each of those documents
and testimony were properly designated as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” under the Protective Order entered by this Court because each
pertains to topics that are likely to cause particularized competitive harm to BANA
and which could potentially enable future fraud, which poses a danger to BANA’s
business and the public. Multiple of the documents were also designated
Confidential because BANA was explicitly instructed by its regulators to keep the
documents confidential because they implicate regulatory protections and concern
ongoing remediation efforts (see infra at 6).
All are compelling reasons which outweigh the public disclosure factors, and
thus permit sealing of those documents. For example, in East West Bank v. Shanker,
a California district court granted a motion to seal portions of exhibits concerning
“confidential onboarding processes, digital banking platform[s], fraud management
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techniques, and verification of customer identities, which if made public would harm
[the bank’s] business,” and found that public disclosure of EWB’s confidential fraud
prevention measures would “harm EWB’s business.” 2021 WL 3112452, at *18-19.
Similarly, in Soria v. U.S. Bank, N.A., another California district court found
compelling reasons to file under seal information related to a bank’s internal
procedures for investigating incidents of fraud, explaining that “[a]lthough there is a
public interest in [the b]ank’s procedures concerning its fraud investigations, public
disclosure of this information may impede [the b]ank’s ability to identify and combat
future instances of fraud” and that “[t]here is a significant danger that someone could
improperly use this information to commit fraud and avoid detection.” 2019 WL
8167925, at *4.
Similar compelling reasons exist here. Indeed, this court has already found,
compelling reasons to seal documents just like those at issue here, which each relate
to confidential business practices and fraud prevention measures that could be
misused to commit future fraud or used by competitor banks to BANA’s
disadvantage. Earlier in this litigation, Judge Berg determined that there are
“compelling reasons” to seal a number of exhibits previously submitted with
Plaintiffs’ motion to compel discovery that concern the very same categories of
confidential information that BANA seeks to seal here. See ECF 266. In doing so,
Judge Berg found that compelling reasons existed to seal information concerning: the
Claim Fraud Filter, other fraud and claims strategies, prepaid fraud losses, prepaid
updates and trackers, cardholder complaints and escalations, and certain of BANA’s
interrogatory responses—which are precisely the types of documents BANA seeks
to seal here.
This Court also found compelling reasons to seal the same or similar
documents related to analyses of claims fraud and potential strategies to combat that
fraud including the Claim Fraud Filter and other fraud strategies, operational fraud
losses, trainings for claims investigations, fraud detection and prevention policies and
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strategies, claims review policies and strategies and their implementation, BANA’s
analyses of transactional fraud, risk of competitor advantage concerning how BANA
structures its claims and frauds teams and the review procedures, protocols and
systems therein, its analyses of state prepaid unemployment program operations,
fraud prevention programs, organizational charts, confidential regulator materials,
and quotes or summary descriptions from sealed exhibits. See ECF 365, 381, 390.
Those prior rulings are sufficient grounds alone to grant sealing here. See Lundstrom
v. Young, 2022 WL 15524624, at *17 (S.D. Cal. Oct. 27, 2022) (J. Curiel)
(considering prior sealing of exhibits when granting motion to seal); Workplace
Techs. Rsch., Inc. v. Project Mgmt. Inst., Inc., 2021 WL 6091272, at *3 (S.D. Cal.
Oct. 20, 2021) (sealing references to document that court already granted sealing of).
Specifically, the Confidential and Highly Confidential – Attorneys’ Eyes Only
documents, testimony and declarations that BANA seeks to seal, include but are not
limited to, the following categories of documents and information, which this Court
has already found compelling reasons to seal:
•
BANA’s Remediation Plan and Addenda with the OCC and CFPB, and
its implementation of those Plans, which both agencies themselves
designated as “Highly Confidential – Attorneys’ Eyes Only” (see HX2
30, 31) (see ECF 365 at 14–16 (finding compelling reasons to seal));
•
Documents or testimony concerning aggregated statistics related to
EDD benefit recipients account balances, activity, and fraud claims that
BANA is obligated to maintain as confidential pursuant to its agreement
with EDD (ECF 324-106 at 5), and otherwise would keep as confidential
because its disclosure could cause competitive harm to BANA or its
customers (see HX 30) (see ECF 365, 381 (finding compelling reasons
to seal));
2 Exhibits to the Declaration of Lindsay E. Hoyle submitted in support of BANA’s
Motion to Exclude are referred to as “HX.”
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•
Expert reports and excerpts of experts’ deposition testimony, which
include discussions of BANA’s confidential documents, many of which
contain the confidential information described above, including but not
limited to: BANA’s handling of unauthorized transaction claims and
reconsiderations; BANA’s contract with EDD and the responsibilities
thereunder; BANA’s communications with EDD regarding fraud-
related measures; BANA’s fraud strategies, including the use of EMV
chip technology and the freezing and blocking of accounts; and BANA’s
call center procedures and complaint escalation intake channels (see HX
32, 33, 34) (see ECF 365, 381 (finding compelling reasons to seal));3
and
•
Excerpts of a 30(b)(6) fact witness’s deposition testimony, which
includes discussions of BANA’s confidential documents, many of
which contain the confidential information described above, including
but not limited to: BANA’s handling of unauthorized transaction claims
and reconsiderations; and BANA’s fraud strategies, including the
freezing and blocking of accounts. (see HX 30) (see ECF 365, 381
(finding compelling reasons to seal)).
Documents that risk competitive harm. The aforementioned categories of
documents and testimony also contain sensitive business information that could be
used to BANA’s competitive or commercial disadvantage, which is yet another
compelling reason to seal the documents. See, e.g., E.W. Bank, 2021 WL 3112452,
at *18-19 (granting motion to seal where public disclosure of EWB’s confidential
fraud prevention measures would “harm EWB’s competitive standing”); Adtrader,
Inc. v. Google LLC, 2020 WL 6391210, at *2 (N.D. Cal. Mar. 24, 2020) (sealing
3 BANA submits excerpted deposition testimony from 1 expert (HX 33), which
BANA designated as Confidential because the witness testified regarding BANA’s
confidential documents and to the same categories of confidential information
described above.
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references to internal strategic decisions, policies, and processes related to detecting
and responding to advertising fraud).
For example, discussions regarding the fraud claims filed by EDD cardholders
and the combined monetary amounts of fraud associated therewith (HX 30) are
proprietary, confidential business information of EDD and/or BANA. ECF 344-1
(Martin Decl.) ¶¶ 10-12. Such commercially sensitive information, from which
certain of BANA’s revenues and fraud losses could be derived, and if disclosed,
could be used by another financial institution to compete against BANA, which
warrants sealing. See, e.g., Brady, 2015 WL 6828400, at *3. This Court has
previously found compelling reasons to limit public access to such documents
because their disclosure could lead to harm to BANA’s competitive advantage. See
ECF 381.
Confidential regulator materials. Compelling reasons exist to seal HX 30
and 31, which contain documents and testimony regarding BANA’s implementation
of its Remediation Plan and Addenda with the OCC and CFPB. The regulators
designated the Plans “Highly Confidential – Attorneys’ Eyes Only” as a condition to
BANA producing them to Plaintiffs, and they contain information the OCC deemed
privileged and confidential under its statutes and regulations. Standing alone, the
regulators’ determination and designation—which Plaintiffs readily agreed to when
they accepted the documents last year—should be a sufficient, compelling reason to
seal the Plans and any documents quoting from or referencing those Plans. See, e.g.,
Erhart v. BofI Fed. Bank, 2019 WL 4534701, at *3 (S.D. Cal. Sept. 19, 2019) (sealing
information that the OCC asserted bank examination privilege over but permitted to
be produced subject to confidentiality protections). See also ECF 344-3 (Lennon
Decl.) ¶¶ 3–4, 6. This Court has previously found compelling reasons to limit public
access to such documents because they contain highly sensitive, and confidential
information that would subject any disclosure to potential fraud. ECF 381, 498.
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BANA’s Motion to Exclude, expert reports and appendix of exhibits that
quote and summarize confidential exhibits. BANA has provisionally redacted and
sealed portions of its Motion to Exclude, expert reports appended in support thereof,
and the appendix of exhibits to the Motion to Exclude that quote or describe the
confidential documents, testimony and topics identified above, including BANA’s
fraud, claims and call center policies, strategies and practices, as well as BANA’s
implementation of the Remediation Plan and Addenda (see HX 32, 33, 34). See
supra, pgs. 4-6. This is consistent with the terms of the Stipulated Protective Order
(ECF 82, § 3), and with rulings in this circuit including by this Court. See, e.g.,
Darisse v. Nest Labs, Inc., 2016 WL 11474174, at *2 (N.D. Cal. June 2, 2016)
(sealing class certification motion and declarations that quote or reference
confidential exhibits); ECF 365, 381.
For example, portions of the Motion to Exclude reference confidential
deposition testimony of BANA’s expert witness and provisionally sealed portions of
Plaintiffs’ expert report pertaining to the details of the Claim Fraud Filter and other
BANA claim investigation processes, as well as the Remediation Plan and Addenda;
reference confidential documents and testimony related to the Claim Fraud Filter, the
Remediation Plan and Addenda, and provisionally sealed portions of Plaintiffs’
expert report, among other confidential topics; and quote from or describe the Highly
Confidential – Attorneys’ Eyes Only Remediation Plan and Addenda summarize
BANA’s implementation of the Plans.
For the reasons discussed above, there are compelling reasons to seal
discussions of those topics, testimony and documents, as well as others discussed in
BANA’s Motion to Exclude and the expert reports appended in support thereof. See
supra, pgs. 2-7.
III.
CONCLUSION
For the foregoing reasons and for the reasons set forth in the Court’s Sealing
Orders (ECF 365, 381, 390, 391, 397, 421, 431, 460, 466, 467, 477, 498, 507, 516,
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531, 532, 547, 548), Plaintiffs’ Motions to Seal (ECF 322, 334, 376, 384, 394, 463),
BANA’s prior Motions to Seal (ECF 328, 337, 344, 347, 383, 418, 451, 457, 470,
481, 495, 501, 511, 539, 542) and accompanying declarations submitted in support
thereof (ECF 344-1, 344-2, 344-3, 347-1, 347-2), all of which are incorporated herein
by reference, BANA respectfully requests that the Court grant Defendant’s Motion
to Seal because compelling reasons support sealing of the identified documents or
portions thereof. Defendant has lodged a Proposed Order separately with the Court.
Dated: October 17, 2025
Respectfully submitted,
By: s/ Lindsay E. Hoyle__________________
LINDSAY E. HOYLE (pro hac vice)
LHoyle@goodwinlaw.com
VALERIE A. HAGGANS (pro hac vice)
VHaggans@goodwinlaw.com
GOODWIN PROCTER LLP
620 Eighth Avenue
New York, NY 10018
Tel: +1 212 813-8800
Fax: +1 212 355-3333
SABRINA M. ROSE-SMITH (pro hac vice)
SRoseSmith@goodwinlaw.com
MATTHEW L. RIFFEE (pro hac vice)
MRiffee@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N St. NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000
Fax: +1 617 523 1231
LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
601 S Figueroa St., Suite 4100
Los Angeles, CA 90017
Tel.: +1 213 426 2500
Fax: +1 617 346 4444
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the clerk of the
court for the United States District Court for the Southern District of California by
using the CM/ECF system on October 17, 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:
October 17, 2025
s/ Lindsay E. Hoyle
GOODWIN PROCTER LLP
ATTORNEYS AT LAW
Case 3:21-md-02992-GPC-MSB Document 581 Filed 10/17/25 PageID.35511 Page
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