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BANA’S MOT. TO SEAL STANGO OPP.
CASE NO. 3:21-MD-02992-GPC-MSB
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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 MOTION TO SEAL
DOCUMENTS FILED IN
OPPOSITION TO PLAINTIFFS’
DAUBERT MOTION TO EXCLUDE
CERTAIN TESTIMONY OF VICTOR
STANGO
Ctrm:
12A – 12th Floor
Judge:
Hon. Gonzalo P. Curiel
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 79.2(c),
Defendant Bank of America, N.A. (Defendant or BANA) hereby submits this Notice
and Motion to Seal (Motion) certain documents and portions of other documents1 in
connection with BANA’s Opposition (Opposition) to Plaintiffs’ Daubert Motion to
Exclude Certain Testimony of Victor Stango. In particular, BANA seeks to seal
certain Hoyle Declaration Exhibits2 (in whole or in part) because compelling reasons
supports sealing of the identified documents or portions thereof, as well as any
references to those exhibits in BANA’s Opposition and the Hoyle Declaration filed
in support. Consistent with the Court’s prior sealing orders finding compelling
reasons to seal certain exhibits filed with BANA’s Daubert Motions (ECF 598, 599,
600, 601, 602) and BANA’s Motion for Partial Summary Judgment (ECF 603),
BANA also seeks to seal references within its Opposition and the Hoyle Declaration
to the contents of those already-filed and sealed exhibits or portions thereof.3
As previously stated in BANA’s motions to seal submitted in connection with
class certification briefing and argument (ECF 328, 337, 344, 347, 383, 418, 451)
and BANA’s motions to seal submitted in connection with summary judgment
briefing (ECF 577, 579, 581, 583, 585, 587), 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
1 Defendants’ Exhibits to the Declaration of Lindsay E. Hoyle in Support of the
Opposition to Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor
Stango shall be referred to as “HX” in this Motion and the forthcoming Opposition
and supporting documents. Plaintiffs’ Exhibits to the Declaration of James Baltzer in
Support of Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor
Stango shall be referred to as “BX” in this Opposition and supporting documents.
2 Exhibits HX 41 and 42 were previously sealed by this Court (ECF 602) in
connection with BANA’s Motion to Exclude the Purported Expert Opinions of Greg
J. Regan (ECF 567). BANA refiles these exhibits as a courtesy for the Court.
3 BANA incorporates by reference Plaintiffs’ Motion to File Documents Under Seal
(ECF 618) in connection with Plaintiffs’ Daubert Motion to Exclude Certain
Testimony of Victor Stango (Stango Motion, ECF 569).
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ATTORNEYS AT LAW
(1978) (denying disclosure); Local Civ. R. 79.2(c). 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).
Courts, including this Court, consistently seal documents where—as here—
disclosure of confidential business information risks competitive harm to the litigant
or improper use of the information such as to commit fraud. ECF 603; see e.g., E.W.
Bank v. Shanker, 2021 WL 3112452, *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, *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.”). Indeed, this Court largely granted the Parties’ prior motions to seal,
finding good cause or compelling reasons to seal documents concerning the same
topics that BANA now seeks to seal, including but not limited to, BANA’s fraud
detection and prevention strategies and policies, BANA’s claim review and
compensation policies, and BANA’s implementation of the Remediation Plan and
Addenda. See ECF 266, 293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599,
600, 601, 602, 603, 638, 639, 641, 642 (Sealing Orders). Those prior rulings are
sufficient grounds alone to grant sealing here. See Lundstrom v. Young, 2022 WL
15524624, *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, *3 (S.D. Cal. Oct. 20, 2021) (sealing references
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to document that court already granted sealing of).
Consistent with this Court’s Sealing Orders, there are compelling reasons to
seal the confidential documents and testimony at issue here (or references thereto),
as well as substantive discussions of already sealed exhibits filed in connection the
Stango Motion, because each document reflects topics that are likely to cause
particularized competitive harm to BANA and which could potentially enable future
fraud, and thus pose a danger to BANA’s business and the public. See, e.g., Soria,
2019 WL 8167925, *4 (finding compelling reasons to seal bank’s internal procedures
for investigating fraud because there was a “significant danger that someone could
improperly use this information to commit fraud and avoid detection”). Each
document was also properly designated as “Confidential” or “Highly Confidential –
Attorneys’ Eyes Only” under the Protective Order entered by this Court. See BAE
Systems, 670 F. Supp. 3d at 1069 (finding good cause to seal certain exhibits filed in
connection with an apex discovery dispute because “information in the exhibits fits
within ‘confidential information’ in the protective order”).
Specifically, the Confidential documents and testimony that BANA seeks to
seal include, but are not limited to, the following categories of documents and
information, for which this Court has already found compelling reasons to seal:
•
HX 41, HX 41.A, HX 48, and HX 49 reflect confidential BANA fraud
detection and prevention strategies and policies, including the Claim
Fraud Filter, and other current and former fraud strategies that could be
misused by fraudsters to perpetrate future fraud or could be used by
another financial institution to BANA’s competitive disadvantage (see
Amended Sealing Order (ECF 365) at 5-6, 12; Sealing Order (ECF 598,
599, 600, 601, 602, 603));
•
HX 41, HX 41.A, HX 48, and HX 49 reflect confidential BANA
documents pertaining to BANA’s Remediation Plan and Addenda with
the Office of the Comptroller of the Currency (OCC) and the Consumer
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Financial Protection Bureau (CFPB)—which were designated Highly
Confidential – Attorneys’ Eyes Only at those regulators’ requests—
which this Court has found compelling reasons to seal (see Amended
Sealing Order (ECF 365) at 14–16; Sealing Orders (ECF 598, 599, 600,
601, 602, 603));
•
HX 42 reflects BANA’s interrogatory responses and data provided
therein reflecting any reconsideration by BANA of those claims and any
compensation paid as a result (see ECF 365 at 5-9, 12 (finding
compelling reasons to seal); Sealing Orders (ECF 602, 603)); and
•
HX 41, HX 41.A, HX 48, and HX 49 reflect 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. This
information could be misused by fraudsters to perpetrate future fraud or
could be used by another financial institution to BANA’s competitive
disadvantage (see Amended Sealing Order (ECF 365) at 5-9, 12; Sealing
Orders (ECF 598, 599, 601, 602, 603)).
BANA has also provisionally redacted and sealed portions of the Opposition
and Hoyle Declaration that quote, describe or reflect descriptions of the confidential
documents, testimony and topics identified above, for which the Parties have
previously sought to seal in connection with BANA’s summary judgment briefings
(ECF 577, 579, 581, 583, 585, 587) and the Stango Motion (ECF 569). These
provisional redactions and seals are consistent with the terms of the Stipulated
Protective Order (ECF 82, § 3), with this Court’s prior Sealing Orders (ECF 266,
293, 365, 381, 390, 391, 397, 421, 466, 467, 548, 598, 599, 600, 601, 602, 603), and
with rulings in this Circuit. 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
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that quote or reference confidential exhibits). For the reasons discussed above, there
are compelling reasons to seal quotes from and discussions of those topics, testimony
and documents discussed in the Parties’ briefing. See supra at 3-4.
*
*
*
For the foregoing reasons and for the reasons set forth in the Court’s Sealing
Orders in connection with class certification briefing and argument (ECF 365, 381,
390, 391, 397, 421, 466, 467, 548), the Court’s Sealing Orders in connection with
BANA’s Daubert Motions (ECF 598, 599, 600, 601, 602), the Court’s Sealing Orders
in connection with BANA’s Motion for Partial Summary Judgment (ECF 603),
Plaintiffs’ Motions to Seal (ECF Nos. 376, 384, 394, 463, 475, 524, 527, 569, 572,
609, 615, 618), BANA’s prior Motions to Seal (ECF Nos. 328, 337, 344, 347, 383,
418, 451, 577, 579, 581, 583, 585, 587) and accompanying declarations submitted in
support thereof (ECF Nos. 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 Documents Filed in Support of its Opposition to
Plaintiffs’ Daubert Motion to Exclude Certain Testimony of Victor Stango because
compelling reasons support sealing thereof.
Dated: February 5, 2026
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
JAMES W. MCGARRY (pro hac vice)
JMcGarry@goodwinlaw.com
GOODWIN PROCTER LLP
100 Northern Avenue
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GOODWIN PROCTER LLP
ATTORNEYS AT LAW
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
KEITH LEVENBERG (pro hac vice)
KLevenberg@goodwinlaw.com
GOODWIN PROCTER LLP
1900 N Street NW
Washington, DC 20036
Tel: +1 202 346 4000
Fax: +1 202 346 4444
LAURA G. BRYS (SBN 242100)
LBrys@goodwinlaw.com
GOODWIN PROCTER LLP
601 S. Figueroa St., Suite 4100
Los Angeles, CA 90017
Tel.: +1 213 426 2500
Fax: +1 617 346 4444
YVONNE W. CHAN (pro hac vice)
YChan@jonesday.com
JONES DAY
100 High Street
Boston, MA 02110
Tel.: +1 617 960 3939
Fax: +1 617 449 6999
JANICE P. BROWN (SBN 114433)
jbrown@myersnave.com
MATTHEW B. NAZARETH (SBN 278405)
mnazareth@myersnave.com
MEYERS NAVE
600 B Street, Suite 1650
San Diego, CA 92101
Attorneys for Defendant
BANK OF AMERICA, N.A.
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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 5, 2026. 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.
Dated: February 5, 2026
s/ Lindsay E. Hoyle
LINDSAY E. HOYLE
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